[EL] question about new DOJ suit against Georgia

[Pildes, Rick]

It’s fairly hard to tell this Term who might be writing the opinion in the AZ case, but from the breakdown of the opinions already issued, it looks to me like Justice Alito might be the best bet.

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: Crum, Travis <crum at wustl.edu>
Sent: Friday, June 25, 2021 1:55 PM
To: Pildes, Rick <rick.pildes at nyu.edu>; Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: RE: [EL] question about new DOJ suit against Georgia

I’d further add to (both) Rick’s excellent points that Brnovich still matters for the DOJ’s new suit. Although the focus has been on Brnovich’s implications for vote-denial claims under Section 2’s results test, the Ninth Circuit also held that Arizona’s ballot-collection law was enacted with discriminatory intent. The briefing in the case focuses on the “race or party” question and the clear-error standard of review. We’ll have to wait and see how the Court rules and how Georgia responds to these lawsuits, but Brnovich will likely cast a shadow over this litigation too.

From: Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Sent: Friday, June 25, 2021 12:46 PM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; Crum, Travis <crum at wustl.edu<mailto:crum at wustl.edu>>; 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

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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