Federal lawsuits challenging Georgia’s new voting law now face long odds

By Stanley Dunlap | Georgia Recorder | July 25, 2021

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The American Civil Liberties Union and other groups suing to overturn Georgia’s new election law have an arduous road ahead to show how it disparately harms minorities after a recent U.S. Supreme Court decision sets what legal experts say is a nearly impossible standard to overcome.

Eight federal lawsuits are pending that challenge Georgia’s sweeping voting overhaul titled the Election Integrity Act and passed by Republicans in March. The majority of those suits argue that restrictions to absentee drop boxes and shortened absentee request windows violate Section 2 of the Voting Rights Act, which prohibits discrimination based on race, color or language. 

But on July 1, six conservative justices led by Justice Samuel Alito issued the 6-3 landmark decision in Arizona’s Brnovich vs. Democratic National Committee case that could reshape the voting rights landscape for years to come.

“It appears that almost any kind of law could be passed as long as there are some tenuous election integrity reasons stated for it,” said David Becker, executive director and founder of the Center for Election Innovation & Research. “And I think especially in cases that are going to go up to the federal court system and perhaps ultimately end up at the United States Supreme Court, it’s gotten much harder for minority voters to challenge these lawsuits.”

That means bad news for groups challenging Georgia’s election law since most of the litigation argues Section 2 protections should block new absentee ID requirements, the invalidating provisional ballots cast before 5 p.m. at the wrong precinct and other rules.

One case still in the early stages after the ACLU, NAACP, and Southern Poverty Law Center filed the suit this spring on behalf of the Sixth District of the African Methodist Episcopal Church and other groups. 

Rahul Garabadu, an ACLU Georgia voting rights attorney, said although the Supreme Court decision requires plaintiffs to gather more evidence, it doesn’t strike down that part of the law. 

The ACLU lawsuit also alleges certain provisions of the new election law don’t comply with the Americans with Disabilities Act. 

“Section 2 continues to be an avenue for voting rights litigators to challenge voting restrictions, and so we will continue to use the fullest extent of the law as it exists,” Garabadu said. “We’re prepared to meet that standard, and we’re prepared to continue litigating these cases, especially on behalf of voters of color, voters with disabilities and other marginalized voters as well.”

The dispute over Georgia’s Senate Bill 202 centers around Republican officials defending it against accusations that it disenfranchises communities and is a rushed reaction to the GOP suffering high-profile losses in 2020 presidential and U.S. Senate elections.

But as legal proceedings advance, the Supreme Court provided enough clarity for Eric Segall, a Georgia State University constitutional law professor, to say that while he admires groups fighting to improve voting access, it might be time for a new strategy.

Because of the long odds and costly litigation, organizations could better focus those resources on registering more voters, educating young people about elections and getting more people to show up at the polls in the upcoming elections, he said.

“Honestly, that’s what you need to do, because eventually this will be fought out in the Legislature,” Segall said.

Segall said the Supreme Court’s ruling guts the intention of Section 2 to hold states accountable for cutting back on election law in a way that discriminates based on race or language, he said.

“This court doesn’t care about any of that,” he said.

Doug Spencer, a professor of law and public policy at the University of Colorado, isn’t completely counting out the chances of legal victory for the plaintiffs in Georgia. There’s a longshot that a lower court judge rules in their favor, and if the timing is right, those invalidated rules wouldn’t be in place for the pivotal statewide 2022 elections for governor and the Senate seat now held by Sen. Raphael Warnock.

Spencer said he expects the state to try to dismiss the lawsuits based on the high court’s ruling. The lawsuits could also benefit if they’re consolidated by a judge. U.S. District Court Judge J.P Boulee has oversight of all eight federal election lawsuits and ruled narrowly this month not to let them affect a special election early this month.

“The state would probably win an appeal, but the appeal might take a year or two and in the meantime,” Spencer said. “So I think that the ACLU or other groups’ desire to continue is not irrational, even if they lose in the end.”

New test creates new burden of proof

The guidelines Alito outlined for judges in Section 2 voting rights cases include whether the law imposes a severe burden on minority voters, if the state isn’t justified in its reasoning for the changes and whether the state’s electoral system is open to all voters. 

Alito also asks how the state’s voting law compares to 1982, when Congress extended Section 2 protections, he said.

“It’s kind of a bizarre (comparison), but it’s also the most devastating when I look at SB 202 for minority plaintiffs because in 1982 voting was pretty hard for minority voters in Georgia, everywhere in the country,” Spencer said.

In Georgia, among the handful of lawsuits based on Section 2 include ones filed by the NAACP of Georgia, New Georgia Project and other organizations.

A week before the Supreme Court handed down its ruling on Arizona’s law, the U.S. Department of Justice filed suit against Georgia over claims that Republicans are making it harder for Black Georgians to vote.  

But a primary focus of the federal prosecutors’ claim is that the intent behind the law is discriminatory. It’s still a tough standard to find that smoking gun, but it is a different legal argument than what the Supreme Court recently unraveled, Spencer said.

The Supreme Court’s decision also intensified pleas this week from Democrats at an Atlanta field hearing hosted by the U.S. Senate committee for the passage of a federal voting rights bill named in honor of the late Georgia Congressman John Lewis, as well as the For the People Act election legislation.

Election law experts warn that a July U.S. Supreme Court ruling could hinder the success of lawsuits challenging Georgia’s voting rules on claims they place unjust burdens on minority voters. Ross Williams/Georgia Recorder