The Justice Department is suing Georgia. Don’t expect Garland to end there
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.
The majority-Republican legislature adopted the law, S.B. 202, in the aftermath of historic Black turnout and the election of two Democratic senators in the last cycle. Originally just three pages long, the law ballooned, with little warning to Democratic legislators, into 90 pages of restrictions on, for example, the use of absentee ballots and the provision of food and water to people waiting in line to vote. The law also contains a new rule that limits counting out-of-precinct ballots.
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. [Continue reading…]