[EL] question about new DOJ suit against Georgia

Fri Jun 25 10:22:12 PDT 2021

Analysis: DOJ’s Savvy, Strategic, and Very Ambitious Complaint Against Georgia’s New Voting Law (Includes Link to Complaint)<https://electionlawblog.org/?p=122840>
Posted on June 25, 2021 10:21 am<https://electionlawblog.org/?p=122840> by Rick Hasen<https://electionlawblog.org/?author=3>
DOJ has now posted the complaint <https://electionlawblog.org/wp-content/uploads/GA-lawsuit.pdf> it has filed against the new Georgia voting law and it is a very calculated and strategic legal filing. Here are my initial thoughts:
1.    DOJ has authority to bring suit under Section 2 of the Voting Rights Act but it cannot sue directly for intentional voting rights constitutional violations under the 14th or 15th amendments. It does have authority<https://www.law.cornell.edu/uscode/text/42/2000h-2> to intervene in other suits raising an intentional 14th amendment claim (so perhaps we will see intervention in the NAACP LDF suit or another<https://www.naacpldf.org/wp-content/uploads/Sixth-District-of-the-AME-Church-v.-Brian-Kemp.pdf>). So this suit raises only a Section 2 claim.
2.    Most Section 2 claims are brought claiming that a state or locality has passed a law with a racially discriminatory effect, a generally easier standard to prove than racially discriminatory purpose. In fact, Section 2 was amended in 1982 (over the objections of now-Chief Justice John Roberts, then working for the Reagan Administration) to allow claims for discriminatory effects. The Supreme Court has weighed in many times on how discriminatory effects works in the redistricting context, but never for vote denial claims where a state has made it harder to register and vote. That issue is pending right now in Brnovich, which should be decided next week. The Court could well make bringing such claims harder (though there’s reason for some hope about the Court fracturing<https://electionlawblog.org/?p=122703> and leaving a standard that still allows plaintiffs to win sometimes).
3.    Perhaps given the uncertainty of Brnovich, the DOJ suit claims only discriminatory effect. This insulates it from an adverse ruling in Brnovich as well as doesn’t give the courts another opportunity to water down the Section 2 effects test. It is highly unusual to see a section 2 case that raises only discriminatory purpose. (The LDF suit raises both).
4.    The timing is interesting: lots of us expected the Court to issue Brnovich today, and this may have been a planned response to show that DOJ can still file even after a potentially adverse ruling.
5.    The use of intentional discrimination also allows the DOJ to ask for Georgia to get observers and be “bailed” back into coverage under the preclearance rules that used to apply through Section 5 to Georgia (until the Supreme Court’s Shelby County decision). It’s a tough road: earlier attempts to bail in Texas and North Carolina have failed, despite court findings of intentional discrimination. But it shows DOJ on the offense.
6.    Lower courts have recognized that Section 2 allows for discriminatory purpose claims, even though the text of Section 2 speaks only of discriminatory effects. The Republican Party in its Brnovich filing in the Supreme Court recognized <https://www.supremecourt.gov/DocketPDF/19/19-1257/162044/20201130134020712_To%20File%20-%20Hobbs%20-%20Opening%20Merits%20Brief.pdf> that Section 2 covers discriminatory purpose claims: “The Fifteenth Amendment and § 2 of the VRA prohibit intentional racial discrimination.” But I expect we will now see textualist arguments that it doesn’t.
7.    Stay tuned: this will be interesting.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, Voting Rights Act<https://electionlawblog.org/?cat=15>

From: "Pildes, Rick" <rick.pildes at nyu.edu>
Date: Friday, June 25, 2021 at 10:17 AM
To: "Crum, Travis" <crum at wustl.edu>, Rick Hasen <rhasen at law.uci.edu>, Lorraine Minnite <lminnite at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: RE: [EL] question about new DOJ suit against Georgia

This complaint confirms that DOJ is litigating this only as a discriminatory purpose case.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Crum, Travis
Sent: Friday, June 25, 2021 1:03 PM
To: Rick Hasen <rhasen at law.uci.edu>; Lorraine Minnite <lminnite at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] question about new DOJ suit against Georgia

The DOJ’s complaint can be found here:

https://www.huffpost.com/entry/georgia-voting-lawsuit-doj-biden_n_60d5e616e4b0c101fc87dc0e?42p<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.huffpost.com_entry_georgia-2Dvoting-2Dlawsuit-2Ddoj-2Dbiden-5Fn-5F60d5e616e4b0c101fc87dc0e-3F42p&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=ECK-mr3f1MyJ5NB8cVCOYnDOI8OZaV1lqUh3vNqnjo4&s=IkkpLuiFwcpDRpVEDWyKYekw0vAj0bLQdplcrkiMnnk&e=>

Unlike NAACP LDF’s, it expressly requests bail-in relief under Section 3(c) of the VRA.

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Rick Hasen
Sent: Friday, June 25, 2021 11:23 AM
To: Lorraine Minnite <lminnite at gmail.com<mailto:lminnite at gmail.com>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] question about new DOJ suit against Georgia

I have not been able to get it yet.
The NAACP LDF complaint against the Georgia law alleges both discriminatory results and purpose under Section 2, as well as intentional discrimination claims under the 14th and 15th amendments.
https://www.naacpldf.org/wp-content/uploads/Sixth-District-of-the-AME-Church-v.-Brian-Kemp.pdf<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.naacpldf.org_wp-2Dcontent_uploads_Sixth-2DDistrict-2Dof-2Dthe-2DAME-2DChurch-2Dv.-2DBrian-2DKemp.pdf&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=ECK-mr3f1MyJ5NB8cVCOYnDOI8OZaV1lqUh3vNqnjo4&s=S1PRCz3XXI5PH3vY7qfFq-aqnMrTgzrSVGDvBwk1UIg&e=>

From: Lorraine Minnite <lminnite at gmail.com<mailto:lminnite at gmail.com>>
Date: Friday, June 25, 2021 at 9:20 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] question about new DOJ suit against Georgia

Does anyone have a copy of the complaint?

- Lori Minnite

On Fri, Jun 25, 2021 at 12:08 PM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
I guess my question is what is the “purpose prong” of Section 2 and could it survive a textualist challenge in the current Supreme Court?

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

Cf section 5:

a) Whenever a State or political subdivision with respect to which the prohibitions set forth in section 10303(a) of this title based upon determinations made under the first sentence of section 10303(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 10303(a) of this title based upon determinations made under the second sentence of section 10303(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 10303(a) of this title based upon determinations made under the third sentence of section 10303(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure:
..
Emphases added

From: John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>
Date: Friday, June 25, 2021 at 8:59 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] question about new DOJ suit against Georgia

DoJ needs statutory authority.   I don’t see the Court erasing the purpose prong of Section 2, though.  Do you?

Sent from my iPhone

On Jun 25, 2021, at 11:26 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
There’s a press conference now where DOJ officials are discussing bringing a case against Georgia for its new voting law. The claim is that Georgia enacted its law with a discriminatory purpose in violation of Section 2 of the VRA.
Given the uncertainty about what Section 2 is going to mean in the context of vote denial cases with the pending Brnovich decision (and section 2’s focus on discriminatory results or effects rather than purpose), it seems this kind of claim should be coupled with a 14th/15th amendment intentional discrimination claim.

Does DOJ have authority to sue for such constitutional violations?  I recall Justin writing something about this on the list a while back, but he’s now working for the Biden Administration and so I can’t ask him.

Thanks!

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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