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Biden Challenge to New State Voting Laws Hinges on GOP ‘Intent’

June 26, 2021, 2:00 PM

The Biden administration injected itself into the controversy around state election law overhauls by challenging Georgia’s new statute, while sidestepping the part of the Voting Rights Act that the U.S. Supreme Court could gut next week.

The Justice Department Civil Rights Division on Friday claimed Georgia lawmakers intentionally discriminated against Black voters in a voting law (S.B. 202) passed this spring that changes absentee voting rules and prohibits handing out food and drinks to people in line to vote.

But the administration decided to fight with one-hand-tied-behind its back, legal analysts said, intentionally eschewing a claim under Section 2 of the Voting Rights Act of 1965 that bars state laws that have a “disparate impact” on Black voters.

Instead, the administration argues that GOP lawmakers intentionally discriminated because statehouse testimony warned that the law would disadvantage Black voters—and the state adopted it anyways.

While the strategy demonstrates the tenuous nature of challenges under an already weakened Voting Rights Act, it does chart a course for how President Joe Biden‘s Justice Department could challenge other new state election laws that restrict ballot access, voting litigation experts told Bloomberg Law.

“You’d have to assume they would be open to bringing other similar cases if and when other states pass similarly sweeping laws seeking to deter voting by people of color,” said Paul Smith, vice president, strategy and litigation at the Campaign Legal Center, a group that frequently argues cases in federal court on the side of Democrats.

‘Hard to Prove’

The Republican-led Georgia legislature passed the law following former President Donald Trump‘s loss in the 2020 election, Democratic victories in two U.S. Senate races, and false claims that the elections were rigged.

Laws tightening ballot access have also been enacted in Florida, Arizona, and Iowa, and dozens of other bills have been filed in statehouses across the country by GOP lawmakers seeking to overhaul election rules.

But challenging those laws as intentional discrimination will be an uphill battle, veteran GOP election law attorney Mark Braden, of counsel at BakerHostetler, said in an interview.

“Intent is hard to prove,” he said. “There was a time when people would stand up in the legislatures and say things reflective of racist positions—that’s not happening now. So a lot of ‘the intent’ is looking inside the hearts or minds of the legislature, and good luck with that. Providing intent is difficult, but not impossible.”

Intent vs. Impact

The U.S. Supreme Court is poised to issue a ruling next week in a Voting Rights Act case out of Arizona that could alter the way courts analyze challenges to the so-called disparate impact claims, a legal argument the Biden administration avoided in its Georgia lawsuit.

During March arguments in Brnovich v. Democratic National Committee, the Supreme Court seemed likely to uphold two Arizona voting measures that Democrats say disproportionately harm Black voters. But some conservative justices seemed interested in charting a middle ground on how deferential courts should be to states when hearing such challenges.

Plaintiffs haven’t seen much success pursuing disparate impact cases, Iowa College of Law professor Derek Muller said in an interview. Thus, “by going after intent” in the Georgia case, the Biden administration is “hoping to have a cleaner win, even as tough as it might be to show that the legislature acted intentionally.”

While the complaint filed in U.S. District Court for the Northern District of Georgia doesn’t allege a disparate impact on Black voters, the case is grounded in impact. There’s no “smoking gun” statement of discriminatory intent from any lawmakers—instead the DOJ argues lawmakers received testimony about the disparate impact of the law’s changes and intended those consequences when they passed the law.

“For example, Black voters in Georgia have disproportionately voted by absentee ballot in recent elections, but SB 202 makes absentee voting less accessible by erecting new hurdles at every step of the process,” the complaint said. These obstacles “will push Black voters toward in-person voting, where they will be more likely than white voters to confront long lines, and where, because of SB 202, they will face additional impediments to successfully casting a ballot that will be counted.”

Preclearance, Past and Present

The suit was filed on the eighth anniversary of the Supreme Court’s Shelby County v. Holder decision, which struck down a Voting Rights Act formula that required Georgia—and other states with a history of discrimination against minority voters—to “preclear” election law changes with the Justice Department or a federal court before they could take effect.

But another part of the Voting Rights Act still standing allows a court to “bail in” a state, ordering officials to preclear election rule changes, under the federal law. That’s something the U.S. is seeking in its suit against Georgia.

“Today’s announcement is not only an affirmation of the work we do each and every day to protect voting rights; it’s a stern warning to other states,” Cliff Albright and LaTosha Brown, co-founders of Black Voters Matter, another group suing to block the Georgia law, said in a statement.

In a tweet, Georgia Secretary of State Brad Raffensperger—who strongly refuted Trump’s claims last year that he had won the state and that the election was rigged—said the lawsuit “spreads more lies about Georgia’s election law.”

Of the Biden Justice Department, Raffensperger said: “I look forward to meeting them, and beating them, in court.”

The case is United States v. Georgia, N.D. Ga., No. 1:21-cv-02575-JPB, complaint filed 6/25/21.

To contact the reporters on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Meghashyam Mali at mmali@bloombergindustry.com

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