Georgia’s new GOP-backed election law is calling into question President Biden’s power to make good on a campaign vow to challenge suspected race-based voting limits, a task made more difficult by a Justice Department faced with a depleted arsenal in the battle over voting rights.
The Georgia law, passed last week along party lines in the span of just a few hours, imposes restrictions that voting rights groups say will fall most heavily on minorities: It sets new voter ID requirements for absentee ballots, limits drop boxes and even bars passing out food and water to those waiting in line to vote.
Georgia Republicans, for their part, say the law was needed to protect voter integrity. But that assertion appears to be at odds with the multiple election recounts and a paper ballot audit that endorsed the legitimacy of the state’s election results.
Experts are divided on what they see as the true motivation behind a similar raft of GOP laws being considered by state legislatures across the country. Some argue they are merely the latest form of partisan maneuvering and a sop to Trump supporters still rueing the former president’s defeat, while others warn that they signal a rollback of hard-won gains from the civil rights era.
Biden said during the campaign he would “make voter protection a foundation of my administration” and added Friday that the White House and the Department of Justice (DOJ) are reviewing the Georgia law.
But his promise comes with a caveat. The DOJ over the past decade has seen its menu of legal options whittled down, leaving Biden with diminished authority to test whether new Republican voting rules impermissibly harm people of color, as racial and partisan tensions coalesce around GOP voting rules now under discussion. And those powers went largely unused under former President Trump.
Given the heavy legal burden of proving a voting law was motivated by race, said Justin Levitt, a professor at Loyola Law School, the DOJ faces roadblocks in mounting a case, even if some parts of the Georgia bill are “needlessly cruel.”
“There’s a big difference between feeling in your heart that you know why a bill was passed and being able to prove in court it was passed in order to discriminate based on race,” said Levitt, who served as deputy assistant attorney general in the DOJ’s Civil Rights Division during the Obama administration.
For nearly five decades, the DOJ had a powerful weapon in the fight against voting proposals that raised questions of racial bias. Derived from Section 5 of the Voting Rights Act of 1965, the department possessed a kind of veto power over state voting laws it deemed racially discriminatory.
In Georgia alone, federal authorities drew on Voting Rights Act powers to review legislative proposals in more than 180 instances, according to a recent lawsuit filed against the latest Georgia law.
But the DOJ’s authority to screen racially suspect voting laws under this so-called preclearance process was eliminated by a 2013 ruling by the Supreme Court. As a result, voting rights groups say the task has now fallen to minority voters themselves to test whether the laws in fact make it harder for them to vote in an actual election.
Michael Clemons, a political science professor at Old Dominion University, said the Supreme Court’s 2013 ruling in Shelby County v. Holder represented the starkest setback in recent times amid the ongoing struggle for equal voting rights.
“The civil rights movement was successful in terms of helping to bring about certain changes in voting rights in this country,” Clemons said. “And what we’ve seen over a period of time since then is the erosion of what was gained from the civil rights movement.”
In striking down the preclearance requirement, Chief Justice John Roberts, writing for the majority in 2013, said the Voting Rights Act could continue to guard against racist voting laws after the fact — through Section 2.
That provision of the law blocks discrimination on the basis of race, color or membership in a “language minority group.” But it confronts DOJ lawyers with a legal bar that experts say is difficult to clear.
The law requires meeting one of two tests: proving either that lawmakers intended to discriminate or showing that a new voting law would have a discriminatory impact regardless of the intentions that fueled its passage.
“Impact is easier to prove than intent. It’s 2021. It’s going to be pretty hard to find a smoking gun of ‘Hey let’s kick Black voters off the rolls,’ or ‘Let’s stop Black people from voting.’ Even if that’s the intent, they’re not going to put that in an email or in writing,” said Caleb Jackson, legal counsel on voting rights at the Campaign Legal Center.
“So it’s easier to prove impact,” he said, “but easier isn’t easy.”
Jackson called the bill “reactionary,” targeting several practices recently used in heavily Democratic — and heavily Black — parts of the state. That includes barring the use of mobile voting buses, which were designed to expand capacity in places like Fulton County.
Georgia already faces three legal challenges from advocacy groups like the NAACP, with one lawsuit alleging that the new law leaves it “to Black [voters] and other voters of color to demonstrate which of these changes have discriminatory purpose or effect.”
But those suits brought by private groups raise legal issues that are generally thought to lie outside DOJ’s scope, arguing that the Georgia law violates not only the Voting Rights Act, but also the First and 14th Amendments, which protect voting rights and grant “equal protection of the laws.” DOJ, for its part, has been limited by courts to exercise only voting rights enforcement powers given to it by Congress, Levitt said, which excludes constitutional provisions that apply to voting.
“There are other private entities that have a lot more tools even if the tools that the DOJ has are pretty big and robust. There’s a more expansive tool kit available to private agencies being able to bring these claims directly under the Constitution,” he said.
“I think the things that people are most upset in the Georgia bill about are things that are much more natural claims under the Constitution than under the Voting Rights Act.”
And there could be more limitations on DOJ’s power in the near future.
The Supreme Court this term will decide a dispute over a set of Arizona voting restrictions alleged to be racially discriminatory, which could yield the most important voting rights ruling since the court’s controversial 2013 decision.
Voting rights advocates fear the 6-3 conservative court could further erode DOJ’s power to challenge state voting laws under Section 2, including any of the more than 160 measures that advocates have flagged as having the potential to restrict voter access.
And they’re likely to keep coming. Florida just introduced a measure that, like Georgia’s, would bar handing out food or water to voters waiting in line.