[EL] question about new DOJ suit against Georgia

[Nicholas Stephanopoulos]

I wouldn't necessarily read too much into the complaint's omission of a
Section 2 disparate impact claim. If *Brnovich* leaves open a plausible
path for these claims, DOJ could easily add one to its complaint. With
*Brnovich* still pending, DOJ would have had to speculate as to what the
eventual legal test will be.

On Fri, Jun 25, 2021 at 1:47 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> *Further Analysis of the DOJ Suit Against Georgia*
>
> I want to add an additional comment to the points Rick Hasen has flagged
> about the DOJ suit. DOJ's strategic decision to avoid claiming that GA's
> law violates the "results" test of Section 2 certainly reflects a judgment
> that winning on this claim in the lower courts might well end up providing
> the Supreme Court an opportunity to cut back on the "results test" or, even
> more dramatically, hold the results test unconstitutional.
>
> But the DOJ does not control the litigation strategy of all the
> non-governmental groups that are highly active these days litigating VRA
> cases. Will these groups take this signal from DOJ and also decide to
> litigate Section 2 cases only as discriminatory purpose cases and abandon
> "results" based claims, at least until the composition of the Court
> changes? In this case, the LDF has already brought a separate complaint
> that relies on the results test, in part. It will be interesting to see if
> LDF's approach changes or not. More generally, despite DOJ's judgment, will
> it be these private groups that push the "results" test onto the Supreme
> Court's agenda, beyond the AZ case currently pending?
>
> To be sure, DOJ's strategy might evolve, since this is its first entry
> into using the VRA to challenge newly enacted state voting law changes. But
> for now, it appears that DOJ does not consider it prudent to invoke the
> results test of Section 2 before the current Supreme Court.
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
>
>
>
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-- 
Nicholas O. Stephanopoulos
Professor of Law
Harvard Law School
nstephanopoulos at law.harvard.edu
(617) 998-1753
https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos
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