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.
The Susan B. Anthony List (SBA List) released a national poll Monday of likely voters that found a strong majority of voters support limits on abortion after 15 weeks of pregnancy and the rejection of abortion on demand.
The poll, which was conducted on the heels of the U.S. Supreme Court’s announcement it would review Mississippi’s 15-week abortion limit and consider the question of whether all “pre-viability” bans on abortion are unconstitutional also found likely voters much more likely to support Republican candidates who back a 15-week limit on abortion versus Democratic candidates who back unlimited abortion.
“Among other findings, this survey of 1,200 likely voters showed that there is a strong center-right coalition that supports the Supreme Court allowing significant limits on abortion. In short, a strong majority of voters oppose unrestricted, abortion on demand, throughout pregnancy. Additionally, this study strongly indicates that the pro-life side of the issue enjoys significantly more intensity than the pro-choice side. Politically, the pendulum has swung decisively in our direction,” said the polling firm OnMessage Inc., in its analysis of the data.
Among the key poll findings:
-53 percent of likely voters said they were more likely to vote for a Republican candidate who supports a 15-week limit on abortion versus just 28 percent of voters who prefer a Democratic candidate who supports unlimited abortion up until the moment of birth. Independent voters break strongly to the GOP side by a 54 percent to 18 percent margin.
-55 percent of likely voters say they are more likely to support a 15-week limit on abortion when they learn that an unborn child has the capacity to feel pain.
-43 percent of likely pro-life voters identified abortion as being “very important” (10 on a 1-10 importance scale) in deciding their vote for an elected official, while only 29 percent of pro-choice voters said the same.
“The majority of voters reject late-term abortion and the Democratic candidates who shamefully advocate for it. At 15 weeks, unborn children can feel pain, and most European countries limit abortions at this point. There is strong support among the American people for our nation’s laws to finally catch up with science and international norms,” SBA List President Marjorie Dannenfelser said in a statement announcing the results.
SBA List recently launched a $2 million video ad campaign asserting the humanity of unborn children. The 30 spot is airing on national cable, including on Lifetime and Bravo networks, as well as select streaming services, and in the Washington, D.C. media market on top news stations.
The case before the U.S. Supreme Court is Dobbs v. Jackson Women’s Health Organization.
Thousands of ballots appear to have been lost in heavily Republican Butler County, PA., leaving officials confused and working with the U.S. Postal Service to retrieve them, the Pittsburgh Post-Gazette reported Friday.
“Over the last week and a half, the Bureau of Elections has received thousands of calls and emails from voters saying they did not receive their mail-in or absentee ballots,” a statement from the county said. “The postal service is maintaining daily contact with our Elections Bureau and is aware of the situation.”
Estimates on the number of missing ballots run into the tens of thousands. According to published reports, the county Elections Bureau mailed out nearly 40,000 with just about half returned as of Thursday.
A spokesperson for the postal service said in a statement to KDKA-TV, “Regarding mail sorting and delivery in Butler County, the Postal Service is unaware of any significant delays or issues and is in regular contact with the Board of Election as we work to locate and deliver ballots as they are presented to us.”
County officials said they would focus on the challenges of providing voters who may not have received mail-in ballots with other options to vote in the upcoming election rather than spend time on finding the ballots that have apparently gone missing. They also that all returned ballots would be recorded on the county web site within the next 48 hours so voters should be able to check if their mail-in ballots were received.
Neighboring Westmoreland County has had similar troubles with ballots this week, the paper said, but numbers are improving. County officials said Friday evening that 52,729 mail-in or absentee ballots have been returned out of the 75,642 that were sent to voters.
Tuesday was the last day for Pennsylvania voters to apply for an absentee or mail-in ballot. Nonetheless, the paper said, a steady stream of voters visited the Butler County Courthouse Friday afternoon to drop their completed mail-in ballots off in person.
“My wife and I decided to drop them off today because we don’t think it would get in on time if we had mailed them,” Anthony Grossi, of Butler, told the paper.
Anyone whose ballot is missing may, the county suggested, go to the Bureau of Elections and vote in person. The office will be open from 9 a.m. to 1 p.m. Saturday and 8:30 a.m. to 6 p.m. Monday. Or they may vote on Tuesday at their local polling place.
Everyone who has considered universal mail-in ballots for any length of time knows it would be disastrous.
With the upcoming presidential election, the left is increasingly dispensing with logic and common sense as they push for universal mail-in ballots. It doesn’t take much to see what a disaster this election would become under such an approach. As Attorney General Bill Barr rightly responded when asked if he had evidence that a mail-in ballot election could be rigged, “No, but I have common sense.”
The same logical fallacies that plagued the ridiculous 2+2=4 controversy are now repeated ad nauseam to convince Americans they should adopt universal mail-in ballots to ensure a fair and safe election. In states such as California and Nevada, residents have received mail-in ballots automatically.
Many have gone along with universal mail-in ballots because “experts” endorse them, not necessarily because they have examined the reasoning behind the movement. Arguments from authority, a popular logical fallacy these days, will successfully sway many people who have no interest in looking into the matter. If a so-called fact-checker such as Snopes labels “mostly false” the claim that universal mail-in ballots are vulnerable to fraud, many will agree and assume the issue is closed.
For those who bother to examine the reasoning for universal mail-in ballots, they will find more logical fallacies behind it all. Beyond relying on arguments from authority, many advocates of universal mail-in ballots will primarily mix up the terms to muddy the waters and derail the conversation, conflating absentee voting, early voting, and universal mail-in voting and treating them all alike. As a bonus, they then accuse President Donald Trump of being a hypocrite for applying for a mail-in ballot himself, and pop-star pundits such as Taylor Swift will stridently condemn his refusal to increase funding for a dysfunctional U.S. Postal Service.
To be clear, an absentee ballot requires an application and various forms of authentication from the person making the request. Universal mail-in ballots do not require an application or much authentication from the voter, so no one can say where they go or who is filling them out. Early voting is simply another option for people to vote before the Election Day rush. Each method works differently, so no one should equate the success of one method with the others. Trump successfully mailing his ballot to Florida doesn’t somehow justify sending a random mail-in ballot to a deceased cat.
Another tactic that abuses the same fallacy is to equate one state’s experience with that of every other state. Mail-in voting proponents love pointing to Utah’s universal mail-in ballots — and what conservative American could argue against anything Utah does? Utah, however, has built up the infrastructure to distribute and collect universal mail-in ballots while other states, such as New York and California, have not, which explains the long delays in tallying votes and innumerable ballots being voided.
If those opposing universal mail-in ballots can make it through these bad arguments, they will then run another one: that mail-in voting has shown little actual evidence of fraud. This statement begs the question because few people ever explain how fraud is detected for a mail-in ballot. In most cases, ballots are verified by a simple signature. If election officials detect a difference between the signature on the ballot and another signature presumably on file, they can report an instance of fraud, which a court can then arbitrate.
This means a person counting votes has every reason to accept a signature and no reason to contest it, unless he wants to go through a messy legal process he might not be able to win. If this is the case, there could be many instances of fraud in mail-in voting, but no one would ever really know.
Furthermore, instances of election officials losing ballots or throwing them away, which happens often, does not actually count as fraud. Even if one-fifth of ballots from New Yorkers might never be counted, that doesn’t necessarily translate to massive fraud in universal mail-in ballots, but massive incompetence. This distinction thus allows Trump’s opponents to attack him for using the word “fraud” when “failure” would be a much more accurate term.
Using universal mail-in ballots would be like giving a test to a class without bothering to proctor it, count out the number of tests correctly, nor even pass it out to the correct students. No one reports any cheating — not the students, the random kids who have a copy of the test, nor the negligent proctor. When the administrator collects the test, he finds many copies in the trash. In the end, however, everyone involved claims the test was fair and that changing this method of testing would be unwarranted and discriminatory.
That’s why everyone who has considered universal mail-in ballots for any length of time knows it would be disastrous. As Barr said, common sense strongly argues against universal mail-in ballots.
Nonetheless, common sense means little when so many people accept the false dilemma of risking their health to exercise their right to vote. As House Speaker Nancy Pelosi, a woman who said marijuana could be used to treat COVID-19, declared without a hint of irony, “People should not have to choose between their health and their vote, and that’s very important.”
Pelosi is right to say voting is important, but she’s wrong to say it’s a choice between health and voting. It really a choice between accepting reason or succumbing to insanity.
President Trump has repeatedly warned of potential voter fraud associated with mass mail-in ballots for the November election, but a bigger threat might be sheer incompetence. Can we really rely on the U.S. Postal Service to handle a nationwide influx of mail-in ballots beginning next month?
So far, there’s not much reason for confidence. Last week in New York City, the Board of Elections threw out more than 84,000 mail-in ballots for the June 23 Democratic primary. That was out of a total of nearly 319,000 mail-in ballots, which means about 21 percent of all mail-in ballots were invalidated.
The New York Post reported, “One out of four mail-in ballots were disqualified for arriving late, lacking a postmark or failing to include a voter’s signature, or other defects.” What’s more, it took six weeks to declare a winner in two closely watched Democratic congressional primary races, largely because of delays associated with a surge of mail-in votes.
Elsewhere around the country, similar problems are cropping up. In Pennsylvania, mail-in ballot problems kept tens of thousands of residents from voting in the June primaries. In California, more than 100,000 mail-in ballots were rejected in the March presidential primary, mostly for missing the postmark and arrival deadlines.
Missing deadlines is turning out to be a real problem. A recent NPR analysis of 2020 mail-in primary ballots found significant rates of rejection because of late arrival. In Virginia, for example, more than 5.6 percent of all primary mail-in ballots were thrown out for arriving after the deadline. The numbers themselves are not large, but in a close election they can make all the difference—after all, Trump won in 2016 because of just 80,000 votes in three key states.
All these problems suggest the Postal Service isn’t prepared to handle an influx of voting by mail this November, as well as the possibility that no winner will be declared on election night because of mail-in ballot delays.
Postmaster General Louis DeJoy last week said the Postal Service is expecting “an unprecedented increase in election mail volume due to the pandemic,” yet insisted it “has ample capacity to deliver all election mail securely and on time in accordance with our delivery standards.”
Based on all the mail-in ballot problems we’ve seen so far this year, that doesn’t seem to be the case. The Postal Service has been bleeding money for a long time—its losses this year reached $1.5 billion, compared to $1.1 billion last year—and the coronavirus pandemic has made things worse as the volume of mail sent by businesses has plummeted. Last month, the Postal Service agreed to a $10 billion loan from the U.S. Treasury Department after congressional negotiations to give the service as much as $25 billion fell through.
DeJoy’s efforts to manage these losses, which include a hiring freeze for leadership positions announced last week, have been denounced by Democrats who sound increasingly like conspiracy theorists. Rep. Gerry Connolly of Virginia, the Democrat who chairs the committee overseeing the postal service, accused DeJoy of “deliberate sabotage to disrupt mail service on the eve of the election—an election that hinges on mail-in ballots.”
Democrats complain that DeJoy, a Republican and a Trump supporter, is a “partisan” postmaster general, and that his efforts to shore up the Postal Service are really a ploy to steal the election.
But to the extent the Postal Service has a political bias, it certainly isn’t DeJoy’s fault—and in fact, it goes in the other direction. Last month, the American Postal Workers Union’s National Executive Board endorsed Joe Biden, saying in a statement that Trump is “a serious threat to our decent postal jobs, our unions and to the right of the people to a public Postal Service.”
That’s not to say there’s a conspiracy in the other direction, that Postal Service workers are going to mishandle mail-in ballots on purpose to hurt Trump. Only that relying on a failing government agency like the Postal Service to ensure the integrity of a presidential election might not be a good idea, especially given all the problems we’ve already seen with mail-in ballots in primary elections this year.
As many as 5.7 million noncitizens voted in the 2008 election and potentially more voted in 2016, according to a new study by Just Facts, a New Jersey-based research group, drawing on information from other studies.
The study—based on data compiled from Harvard University’s Cooperative Congressional Election Study, an analysis published in the journal Electoral Studies co-authored by Old Dominion University faculty, and Census data—also provides some support for what then-President-elect Donald Trump tweeted in late November, when he asserted he won the popular vote if the fraudulent votes were deducted. The Just Facts study did not look specifically at 2016.
The study by Just Facts, which identifies its point of view as conservative/libertarian, but says it maintains independent inquiry, determined as few as 594,000 and as many as 5.7 million noncitizens voted in 2008, in the race between Democrat Barack Obama and Republican John McCain. Eighty-two percent of noncitizens who admitted to voting in a survey said “I definitely voted” for Obama.
An estimate from 2012, which the study finds to have less complete data, is between 1 million and 3.6 million noncitizens registered to vote or voted, including both the “self declared” and the “database-matched” populations.
Democrat Hillary Clinton won the popular vote over Trump by about 2.9 million votes in 2016.
Previously, an Old Dominion University professor’s analysis found that, extrapolating on a more extensive 2014 study, an estimated 800,000 noncitizensvoted in the 2016 election—falling well short of enough to affect the popular vote.
James Agresti, president of Just Facts, was cautious about stating whether this would have changed the result of the popular vote in the 2016 election. He concluded it is likely the number of noncitizen voters in the most recent presidential election was higher than eight years ago.
When asked if noncitizen voters changed the popular vote outcome in 2016, he said, “There is a distinct possibility.”
“The 3 million vote margin would be smack in the middle,” Agresti told The Daily Signal. “I don’t want to say it would. There are a lot of uncertainties. It’s possible.”
There are two ways of looking at the noncitizen voting figures for 2012, Agresti said. Based on the Harvard and Census data, between 1 million and 2.6 million noncitizens voted under “self-declared.” However, there are between 1.2 million and 3.6 million “database-matched” noncitizens who voted that year. So the full range is 1 million to 3.6 million. Because of the overlapping information, Agresti is particularly cautious about drawing conclusions here.
“Just Facts does not have all the data needed to calculate inclusive figures for the 2012 election, so these figures are undercounts,” Agresti said.
Hans von Spakovsky, a senior legal fellow at The Heritage Foundation who has written extensively about voter fraud, was not very familiar with Just Facts, but he said if the findings were true, it lends more evidence to a growing problem.
“This is just another indication of how serious the problem may be and why it is even more important to investigate the possibility of noncitizens voting,” von Spakovsky told The Daily Signal.
In May, Trump named Vice President Mike Pence to chair the Presidential Advisory Commission on Election Integrity.
The difference between the Just Facts finding and the estimate from Old Dominion University research is likely because of a different methodology, said Jesse Richman, an associate professor of political science at Old Dominion University, who did the aforementioned study that arrived at 800,000 noncitizen votes in the 2016 election.
“My impression is that the differences arise principally from the different assumptions we made about how to treat individuals for whom there was some ambiguity about whether they voted or not, e.g. individuals who said they didn’t vote but had a validated vote, etc.,” Richman told The Daily Signal in an email. “There are a variety of assumptioans one could make about how to treat those individuals, and my general impression is that this is the main thing driving the differences between our results.”
Richman’s figure was based on the 2014 study he co-authored that looked at noncitizen voting in the 2008 and 2010 elections. Richman applied the methodology from the study of those years to arrive at an estimated 800,000 noncitizen voters in 2016.
By Rich Logis • The Federalist
Remember the famous garden scene in “The Godfather,” when Marlon Brando’s character, Don Vito Corleone, warns his son, Michael, played by Al Pacino, that someone close to the family will arrange a meeting where Michael will be assassinated?
The real-life political equivalent of that landmark cinematic moment is playing out before our very eyes, with the Republican National Committee and congressional Republicans. On the omnibus, on the Second Amendment, on border safety—almost every issue—the GOP continues to betray the family. Who is the family? The American people, that’s who.
In fairness, yes, Justice Neil Gorsuch’s confirmation, the president’s constitutionally bona fide federal judges, and tax reform were big wins in the last year. But we didn’t elect the biggest GOP majority in the modern era to take baby steps, did we? We colored the map red (even though guaranteed red states no longer exist) to take giant leaps, especially after eight years of mostly impotent GOP opposition to President Obama. And let’s be honest: 90 percent of the reason our map was red was because of President Trump. Continue reading
By Kyle Sammin • National Review
Last month, the Supreme Court heard arguments in Gill v. Whitford, which concerns gerrymandering in Wisconsin. Gill is the latest of many instances in which progressives have taken to the courts to advance their electoral cause when they couldn’t win at the polls. The plaintiffs in the case advanced a novel theory, the “efficiency gap,” which purports to varnish their old arguments with a fresh coat of mathematical certainty, replacing politics with math, whether the people agree or not.
One problem with elevating recently invented theories to the level of constitutional law is that they are found nowhere in the Constitution. But even if you are willing to overlook that important detail, there is also the lack of evidence that the “efficiency gap” theory is true. It works for the Gill plaintiffs because they think it would achieve the result they want: more Democratic state legislators. But, as the 2017 House of Delegates elections in Virginia have recently shown us, the theory has serious flaws.
There are many factors that go into the construction of legislative districts, some of which are necessarily at odds with one another. Since the 1840s, Congressional districts have in general been single-member and geographically contiguous. The same typically applies at the state level. There are also Continue reading
By Stephen Dinan • The Washington Times
A unanimous Supreme Court ruled Monday that illegal immigrants and other noncitizens can be counted when states draw their legislative districts, shooting down a challenge by Texas residents who said their own voting power was being diluted.
The ruling does not grant noncitizens the power to vote, but says the principle of one person, one vote doesn’t require localities to only count those who are actually eligible to vote when they are deciding how many people to put inside of each district.
Justice Ruth Bader Ginsburg, writing for the court, said even though only eligible voters are supposed to cast ballots, elected officials represent all people within their districts, and it is that act of representation, not the election itself, that the boundaries are drawn to. Continue reading
by Hans von Spakovsky • The Daily Signal
In a loss for voters, the Supreme Court has ruled unanimously against two residents of Texas who had argued that the Texas legislature diluted their votes when it used total population to redraw state Senate districts.
In Evenwel v. Abbott, the Supreme Court allowed states to use total population in redrawing district lines, even though that this includes a large number of noncitizens (legal and illegal), felons, and others who are ineligible to vote.
Sue Evenwel and Edward Pfenninger challenged the state Senate districts drawn by the Texas legislature using total population in 2013. They claimed that both the number of citizens of voting age and the number of registered voters in their districts deviated substantially—between 31 and 49 percent—from the “ideal” population of a Texas Senate district. They argued that this disparity significantly diluted their votes in comparison to those of voters who live in districts with large numbers of non-voters. Continue reading