[EL] question about new DOJ suit against Georgia

[Pildes, Rick]

Perhaps.  They could also have laid out the basics of an effects case and then amended it after the AZ decision, if any changes would then be required.  Or waited a few more days until the decision came down, then file, though perhaps DOJ thought it was important to weigh in now rather than in a week.

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: Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
Sent: Friday, June 25, 2021 1:52 PM
To: Pildes, Rick <rick.pildes at nyu.edu>
Cc: Rick Hasen <rhasen at law.uci.edu>; Crum, Travis <crum at wustl.edu>; Lorraine Minnite <lminnite at gmail.com>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] question about new DOJ suit against Georgia

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<mailto: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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