On Friday, Attorney General Merrick Garland delivered on his promise to use all his statutory authority to protect the right to vote: He announced he was suing the state of Georgia for enacting a law he said the legislature passed to deny Black people that right.
In April 2020, the Georgia House speaker, David Ralston, a Republican, inveighed against the mailing of applications for absentee ballots to all registered voters. That, he said, would just “drive up turnout,” which would be “extremely devastating” to candidates he wanted to see win. Banning this method of giving voters easy access to absentee ballots was among the measures included in S.B. 202.
United States v. Georgia is a claim under Section 2 of the Voting Rights Act, which prohibits states from adopting practices that deny or interfere with the rights of U.S. citizens to vote because of their race or color. Before 2013, Georgia would have been unable to put S.B. 202 into effect without seeking approval from the Justice Department under Section 5 of the act, called preclearance, which presumably it would not have received. But the Supreme Court gutted Section 5 that year in Shelby County v. Holder. In dissent, Justice Ruth Bader Ginsburg opined that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Now, voters in Georgia are getting soaked, and the only tool the DOJ has to protect them is Section 2, a remedy that Ginsburg noted was weaker than Section 5 because faulty laws could remain in place for years, affecting minority voters in multiple election cycles.
Garland has taken all this into account in United States v. Georgia. Here are five things to know about the lawsuit:
1. This lawsuit is a first step. Garland characterized the lawsuit as the “first of many steps.” He intends to challenge other state laws that discriminate against minority voters. This is more than idle speculation. Other states already have provisions on the books like the ones the DOJ is challenging in Georgia. And some states, like Michigan, are on the cusp of adopting new laws with discriminatory features.
Michigan is an excellent example of where Garland might turn next if the proposed law passes. Restrictive voting measures are justified as necessary to prevent voter fraud. But in Michigan, a GOP-led investigation concluded there wasn’t widespread fraud in 2020. The DOJ will focus on situations like this, where the facts demonstrate that fraud is offered as a pretext for sacrificing the rights of Black voters in an effort to win elections.
The Georgia lawsuit is Garland’s warning to other states that election laws that disenfranchise minority voters are vulnerable to challenge, particularly when they have been transparently justified by allegations of fraud that state legislatures know to be untrue.
2. Proof of intent to discriminate is important. One of the last cases pending on the Supreme Court’s docket, Brnovich v. DNC, which could be decided this week, involves Section 2 of the Voting Rights Act. At stake is the test courts use to establish impermissible discrimination. Given the conservative bent of the court, there are concerns it will create a more rigorous standard for Section 2 challengers to meet than the “results test” that the U.S. Court of Appeals for the 9th Circuit used to invalidate two restrictive Arizona provisions. The results test requires plaintiffs to establish that the challenged provision has a discriminatory impact on minorities, which is explained by the jurisdiction’s history of discrimination. In Brnovich, the court could replace this discriminatory impact test with a more stringent one that requires proof of intentional discrimination to invalidate a new law. The Justice Department, pointedly, accuses the Georgia legislature of intentional discrimination against minority voters.
The department cut straight to the chase, suing Georgia in a 46-page complaint that carefully details the timeline of rising voter participation and the use of absentee ballots, connecting the dots to the specific prohibitions the legislature adopted to demonstrate intentional discrimination. The DOJ also alleges that from 1968 to 2013, while Georgia fell under preclearance and had to submit proposed changes to ensure they were nondiscriminatory, the state flunked the test 177 times. Add to that President Donald Trump’s post-election machinations, demanding that Georgia’s secretary of state “find” the additional votes he needed to win and berating anyone who wouldn’t play along, and the DOJ may have a winning hand, even if, post-Brnovich, there is a more restrictive test of constitutionality.
Garland, who called on the Senate to pass the For the People Act and the John Lewis Voting Rights Act so voting rights can be better protected, is unambiguously demonstrating that if he must, he will use existing statutory authority to protect the vote as aggressively as possible.
3. Garland is covering his bases. The DOJ typically seeks to prevent enforcement of laws it alleges are unconstitutional under Section 2. But it goes further in the Georgia lawsuit, asking the district court to apply the Section 3(c) “bail in provision” of the Voting Rights Act to resurrect the preclearance requirement for Georgia, forcing it to seek preapproval of any additional changes to its voting process. This is possible because in the Shelby County decision, the court did not invalidate Section 5. Instead, it attacked the coverage formula used to decide which states and political subdivisions fell under preclearance, effectively gutting the provision. Even after Shelby County, the 3(c) remedy could be used to force Georgia to preclear any future changes to its voting process.
4. There is now a criminal task force. On Friday, the DOJ created a task force to prosecute threats against election workers. Its members are from the DOJ’s Criminal, National Security and Civil Rights divisions, as well as the FBI. Deputy Attorney General Lisa Monaco sent a memo to all federal prosecutors requiring prompt and vigorous prosecution of these threats. She wrote that “a threat to any election official, worker, or volunteer is, at bottom, a threat to democracy.” This is a significant prioritization of criminal voting rights-related cases.
5. The DOJ doesn’t bring cases like this lightly. Garland isn’t throwing spaghetti against the wall to see what sticks. A poorly thought-out legal theory or a case with weak facts can lead to a devastating loss in court that affects not only that case but the entire body of voting rights law, making it more difficult to bring future cases. Garland has assembled an experienced team of advocates — the associate attorney general, the No. 3 spot in the DOJ’s leadership, Vanita Gupta, is a voting rights lawyer and former head of the Civil Rights Division. Voting rights cases can take many months to develop, but the Georgia lawsuit commenced just weeks after the Senate confirmed Monaco and Gupta.
The combination of expertise and leadership led to unusually prompt action. Bad facts make bad law, while good facts can make good law; picking the right case is essential in voting litigation, and this team’s choice of Georgia over more obvious choices, perhaps Arizona, shows it is capable of being both strategic and fast.
During oral argument in Brnovich, an attorney for the Arizona Republican Party, Michael Carvin, perhaps went beyond what the court was expecting when he answered Justice Amy Coney Barrett’s question about why the party was involved in defending an Arizona law. Carvin gave a pretty good response — if his goal was to prove that Arizona’s law was intended to discriminate against minorities. He said the 9th Circuit’s ruling “puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us.”
That’s what the DOJ is up against. Bald efforts to win elections by denying people, most often Black people, the right to vote. But we have returned to a world with a DOJ that will work to protect the vote. In United States v. Georgia, it is off to a worthy start on an uneven playing field.
