The state of Georgia wants three federal judges in Washington to declare a portion of the Voting Rights Act unconstitutional.
Georgia filed suit earlier this month asking that the court approve Republican-backed plans to redraw the state's legislative and congressional districts. But in that filing, the state asks that if the court rejects its redistricting plans, that it also rule the law that requires that approval to be unconstitutional.
Georgia is one of nine states that must get any change in election law, including district maps, pre-approved by either the Justice Department or the federal court in Washington. That preclearance is required by Section V of the Voting Rights Act, the landmark 1964 law passed in the wake of Jim Crow and voting laws aimed at limiting the ability of African-Americans to vote.
"The state of Georgia and its voters are being subjected to the continued extraordinary intrusion into its constitutional sovereignty through Section 5 and its outdated preclearance formula based upon discriminatory conditions that existed more than 47 years ago but have long since been remedied," the state says in its filing.
Attorney General Sam Olens said the state's argument against the Voting Rights Act is simple: "we're no longer in 1964, there's no longer poll taxes, there's no longer cases where less than 50 percent of the minority population is voting." Of Georgia's 5.7 million registered voters about one-third are minorities.
The suit is the beginning of what could be a lengthy process for approval of its new maps, which are designed to take effect in next year's elections. While Georgia has sued in court for preclearance, it is also simultaneously asking for Justice Department approval. If Justice signs off on its plan, the state would drop its lawsuit.
If that does not happen, however, the state will take its chances in court, and, if loses this first round, could appeal directly to the U.S. Supreme Court.
While the Justice Department is officially the defendant in the state's case, Georgia Democrats will soon join the suit in opposition to the state's maps, House Minority Leader Stacey Abrams, D-Atlanta, said.
"Section V is doing exactly what it should," Abrams said. "It is allowing a minority that has been unfairly sidelined to have a voice in this process and I don’t think Georgia has demonstrated sufficiently that it understands both the progress we've made and the need for continued diligence."
The new maps, approved by lawmakers in August, would consolidate Republicans' power in the General Assembly and would likely help the GOP pick up two additional seats in the U.S. House.
Republicans argue that the maps were fairly created and do not violate the Voting Rights Act, which generally requires states to maintain at least the status quo in the number of majority-minority legislative districts. But Democrats have argued that the GOP plan targets white Democrats and unfairly segregates black voters into groups of districts.
Both sides should prepare for a protracted fight and the court process could be lengthy. Texas, which filed its own redistricting lawsuit in July, will not have oral arguments in the case until next week, nearly four months after filing. No hearings have been set in Georgia's case, although responses to the suit are due by Dec. 19, Olens said. Three judges have been appointed to hear the case: Two appointed by Democratic presidents and one by a Republican.
Justin Levitt, an associate professor of law at Loyola Law School in Los Angeles and an expert on redistricting said it's too soon to gauge how the court will rule on Georgia's proposed maps but that the court could give a sign in the Texas case.
The Texas case, however, does not attack Section V, Levitt said. Georgia's suit could then be ground-breaking, although Olens said Alabama has filed a similar case.
A number of recent cases have shown federal district courts and the Supreme Court reluctant to wipe out nearly 50 years of protections of the Voting Rights Act. A federal judge in Alabama, for example, issued a strong defense of the law in a recent case and the Supreme Court in 2006 said that while they have concerns about Section V, the justices refused to overturn it.
"All the lower courts to confront the question so far give Section V constitutional approval," Levitt said. "They say this is within Congress' authority to safeguard the rights guaranteed by the 14th and 15th amendments."
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