What Does the DOJ’s Suit Against Georgia Mean?

On June 25, Attorney General Merrick Garland announced that the Department of Justice would sue the state of Georgia on the basis that the state’s bill, SB 202, violated Section 2 of the Voting Rights Act (VRA). Pundits and politicians of all political persuasions had strong reactions to the lawsuit. What follows is an analysis of what the legal challenge involves and its potential implications.

What is SB 202?

SB 202 originated in the Georgia legislature in early 2021. In the aftermath of former President Donald Trump’s concerns over alleged election irregularities and the swarm of litigation over different voting policies such as mail-in voting and early voting, Georgia Republicans felt that new laws were needed to fix what they saw as problems with the 2020 election. SB 202 passed both state chambers at the end of March.

SB 202 mandates that people include a copy of an ID when voting by mail. Additionally, voters now can vote by mail only if they apply for a mail-in ballot, as opposed to using a ballot sent them by a government organization. SB 202 shortened the period for applying for a mail-in ballot from 180 days before the election to 72 days. The bill also established a deadline for requesting a ballot 11 days before the election, instead of the Friday before the election.

A particularly contentious part of the bill dealt with “ballot drop boxes.” Drop boxes emerged in most states in the 2020 election as a way to make it easier for people to vote without needing to go to in-person voting locations or to drop off their ballots. The drop boxes allowed voters to leave their ballots in designated receptacles throughout each county. SB 202 mandates that drop boxes be located only inside early-voting sites. Additionally, voters can access the drop boxes only during in-person early-voting hours.

SB 202 gives counties the option to expand early-voting hours and add two more Saturdays in the early voting period. The bill makes it illegal to hand out food and water in voting lines and shortens the amount of time allowed for processing ballots. Finally, SB 202 forbids the use of mobile units for assisting with voting unless the governor declares a state of emergency.

When Governor Brian Kemp signed SB 202 into law, Georgia faced an outcry. Congressional Democrats, celebrities, and corporations claimed that the bill was an assault voting rights. Republicans praised the bill’s passage and argued that SB 202 would protect democracy.

Department of Justice Lawsuit

The DOJ’s case, United States v. Georgia, took issue with the bill’s ban on any government organization providing unsolicited mail-in ballots, the regulations on voter-engagement groups, the shortened early-voting time, increased requirements for mail-in voting, the prohibition on providing food and water in voting lines, the restrictions on drop boxes, and the embargo on counting “out-of-precinct provisional ballots” before 5:00 p.m. on election day.

In the official complaint, filed with the District Court for the Northern District of Georgia, the DOJ noted that Georgia has had a history of discriminating against black voters; that recent data show more black voters are turning out; that many black voters rely on absentee voting; that many organizations have tried to mobilize black voters; and that black voters have played a role in the recent electoral success of many Georgia candidates.

The complaint listed “Sections 2 and 12(d) of the Voting Rights Act, 52 U.S.C. §§ 10301 & 10308(d), to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution” as the basis for the DOJ’s pursuit of this lawsuit and listed Georgia Secretary of State Brad Raffensperger as the defendant, since his office handles election functions.

Much of the rest of the complaint provided information on how SB 202 could disproportionately affect minorities. Examples included how the Voter ID provision could affect blacks more, since “56 percent of the voters who do not have a driver’s license number associated with their registration are Black (even though Black Georgians represent about 29 percent of registered voters),” and that the ban on handing out food and drink to voters harmed blacks most since “two thirds of the polling places that remained open late during the June 2020 primary election to accommodate waiting voters were in majority-Black neighborhoods.” The DOJ argued that Republicans in Georgia had passed a bill that would purposefully discriminate against black voters to undercut future electoral success for candidates backed by blacks.

The DOJ’s sought-after relief was, first, to have the court declare that the provisions of SB 202 violated “Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, and the voting guarantees of the Fourteenth and Fifteenth Amendments to the United States Constitution.” Second, the DOJ wanted the court to prevent Georgia from enforcing the provisions in question. Third, the DOJ requested that the court allow federal observers to oversee elections in the state. The complaint also seeks to have the court maintain jurisdiction and oversee new changes to the state’s election law.

Interestingly, in terms of case law and controlling precedent, the complaint did not list many cases. The DOJ did refer to past cases that have recognized instances of voter discrimination in Georgia, such as Brooks v. State Bd. of Elections and Wright v. Sumter Cnty. Bd. of Elections and Registration and noted that Georgia had faced scrutiny under Section 5 of the Voting Rights Act until 2013, when, in Shelby County v. Holder, the Supreme Court struck down the enforcement of Section 5. It seems that the DOJ is largely relying on the text of the remaining viable sections of the VRA (particularly Sections 2 and 3); if the DOJ can prove that SB 202 is a manifestation of intentional discrimination, then, under the VRA, the provisions of SB 202 that the DOJ challenged must be struck down.

Reactions to the Lawsuit

Legal observers seem mostly pessimistic about the DOJ’s chance of success. In an article titled “The DOJ’s lawsuit against Georgia’s voter suppression law is probably doomed,” left-wing election law writer Ian Milhiser argued that the large number of Trump-appointed judges on the 11th Circuit would likely strike down any challenges. Conservative legal writer Margot Cleveland considered the lawsuit weak because many parts of the complaint relied on partisan theories and anecdotal evidence, such as random slurs from white supremacists who were not affiliated with the Georgia politicians who passed SB 202.

Legal writer Chris Geidner proposed that Garland is pursuing the case in order to show the conservatives on the Supreme Court that regardless of how they rule on the VRA, the Justice Department will keep pursuing cases like this. Conservative legal writer Dan McLaughlin took a similar view, arguing that Garland was pursuing the case as “a partisan stunt.” McLaughlin noted that Garland announced the case just before the Court’s decision on Brnovich v. Democratic National Committee, which dealt with challenges to similar voting laws in Arizona. McLaughlin argued that if Garland were serious about the Georgia case, he would have waited until the Court announced its ruling in Brnovich – in which it held that similar voting laws in Arizona could not be overruled under the VRA. In response to the ruling, legal experts from all sides agreed that challenges like the DOJ’s suit against GA would now have a tougher time succeeding.

Regardless of the Georgia lawsuit’s legal merits, the DOJ has made a lot of noise with this challenge. But it will take more court proceedings and clarifications from both sides before the suit can be fully evaluated.

Todd Carney is a writer based in Washington, DC.  The views in this piece are his alone and do not reflect the views of his employer.