With a major lawsuit seeking to strike down Georgia’s new elections law, the U.S. Justice Department started a long and difficult voting rights fight that will reverberate in political campaigns while winding its way through the courts.
The lawsuit will face a treacherous path after the failure of a sweeping election bill backed by Democrats in the U.S. Senate and the passage of voting bills in Republican-held state legislatures across the country.
The case was filed Friday, the eighth anniversary of a U.S. Supreme Court decision that scaled back the Voting Rights Act, the landmark civil rights law protecting racial minorities. That ruling removed federal preapproval of changes to elections rules in Georgia and other states with a history of discrimination.
Now, the courts are being asked to decide whether Georgia legislators targeted Black voters by limiting absentee voting in several ways: voter ID requirements, shorter deadlines, fewer ballot drop boxes, provisional ballot rejections and a ban on volunteers handing out food and water to voters waiting in line.
The case will inflame both sides of the political spectrum, reverberating in campaigns both next year in Georgia — now considered a battleground state — and likely in the 2024 presidential election.
“The stakes are viewed as very high,” said Richard Pildes, an election law professor at New York University. “People became much more aware of how much small changes could potentially make a difference in elections.”
Bearing the authority of the federal government, the lawsuit against the state of Georgia is the first major voting rights case brought by the Justice Department in the Biden administration.
Georgia’s majority Republican Legislature passed the state’s voting law in response to supporters of former GOP President Donald Trump, who falsely claimed the 2020 election was fraudulent and that he was the real winner. The law’s backers say it’s justified by a need to restore Republican voters’ confidence in the integrity of elections.
Critics of the law say it’s clear that parts of Georgia’s law disproportionately affect Black voters. Black voters were more likely to cast absentee ballots last year and less likely to have photo ID than white voters, according to state election data.
By extension, the law also targets Democrats since Black voters are their largest and most loyal voting bloc.
But Republican supporters of the law say it applies to everyone equally, no matter their race or party.
Secretary of State Brad Raffensperger said ID requirements are fair, requiring voters to fill in a driver’s license or state ID number to vote absentee, or submit a photocopy of another form of ID.
“People have photo ID and they use it on a daily basis in just about any walk of life. You can’t board a plane and you can’t go anywhere these days without photo identification,” Raffensperger said. “It doesn’t matter what demographic group you come from. It’s going to be an objective measure.”
A tough legal landscape
The lawsuit’s prospects are uncertain in the federal court system.
It has been assigned to a judge appointed by Trump, J.P. Boulee, and conservative appellate courts have frequently rejected expansions of voting rights sought by plaintiffs in recent years. For example, an initial decision to extend Georgia’s Election Day deadline for absentee ballots to be returned was overturned on appeal.
Meanwhile, the U.S. Supreme Court is expected to rule within days on an Arizona case that could further erode protections for minority voters. The court is widely expected to uphold Arizona’s limits on ballot collection and out-of-precinct voting, which are also restricted in Georgia.
The Department of Justice’s lawsuit is the eighth against Georgia’s voting law since Gov. Brian Kemp signed it March 25.
The cases could take years to resolve, but courtroom battles begin Thursday. Boulee is considering a previously filed suit that takes issue with narrower parts with the law, including provisions for shorter absentee ballot application deadlines and the criminalization of election observations when someone could see how a voter cast a ballot.
“The Justice Department’s theory is not fundamentally different than many of the other lawsuits we’ve already seen filed. But the difference is that now you have the full weight of the federal government behind it,” said Anthony Kreis, a constitutional law professor at Georgia State University. “It could take years for it to wind its way through the court. It will continue to be a political hot-button issue for a long time.”
The repercussions of the lawsuit will be felt outside the courtroom, regardless of whether the case succeeds or fails.
Republican voters will be motivated by a law they see as providing reasonable protections, while Democrats will attempt to energize voters of color who believe their right to vote is under attack, Kreis said.
“This is an us-against-them kind of thing,” said Martha Zoller, a conservative commentator and radio host. “It will be seen by the base as Gov. Kemp defending the state’s laws, and it does it without dragging up the 2020 stuff. That’s because it will focus attention on what Republicans are doing in 2021 without looking backward” to Trump’s loss.
Credit: Alyssa Pointer/Alyssa.Pointer@ajc.com
Credit: Alyssa Pointer/Alyssa.Pointer@ajc.com
The lawsuit is centered on the racial impact of Georgia’s voting law, Senate Bill 202, saying it was enacted in a state with a history of discrimination, a dramatic increase in Black use of absentee voting last year and the election of three Democrats they overwhelmingly supported last fall: President Joe Biden and U.S. Sens. Jon Ossoff and Raphael Warnock.
Racial impacts in Voting Rights Act
It alleges the law’s absentee ballot limitations were passed with a discriminatory purpose in violation of the Voting Rights Act, saying state legislators knew voting hurdles would hinder Black voters after Georgia flipped to a Democrat for president for the first time since 1992, when Bill Clinton won.
About 29% of Black voters cast an absentee ballot compared to 24% of white voters in the November election, according to the lawsuit.
The disparity in the law’s voter ID requirements are more severe, according to the lawsuit, which cites the same data first reported by The Atlanta Journal-Constitution earlier this month.
Of the more than 272,000 registered voters who don’t have an ID number on file with election officials, 56% of them are Black even though they make up only about 33% of the state’s population, according to the AJC’s analysis of state election records.
“This bill was a retaliatory, unwarranted response to the 2020 presidential election where African American and other communities of concern went to the polls in record numbers,” said Democratic state Sen. Tonya Anderson, chairwoman of the Georgia Legislative Black Caucus.
The law’s backers say it was needed after Republican voters’ trust in elections was shaken by Trump’s unfounded allegations of fraud.
Two recounts confirmed Biden’s victory, and the courts rejected lawsuits that sought to overturn the results. An audit of absentee ballot signatures in Cobb County found no cases of fraud. While investigators are still probing more than 100 complaints from November, they would not change the election result even if every allegation is substantiated.
Republicans say the lawsuit is a classic case of federal government overreach.
“This is nothing more than a brazen attempt by the Department of Justice to seize powers delegated to states,” said U.S. Rep. Drew Ferguson, a Republican from West Point, Georgia. “I will continue to fight against these ‘woke’ misinformation campaigns that seek to undermine the authority of states to administer their own elections.”
The lawsuit arrived soon after Republicans in the U.S. Senate blocked a wide-ranging elections bill sought by Democrats on Tuesday.
The legislation would have set new standards for early voting and automatic voter registration, revised campaign finance transparency rules, limited partisan gerrymandering and added ethics guidelines for federal lawmakers. It stalled on a 50-50 party-line vote. Under Senate rules, 60 votes are needed to avoid a filibuster and allow bills to be debated.
Prior cases brought under the Voting Rights Act in Georgia have a mixed record in recent years.
Plaintiffs won a lawsuit to redraw school district maps in Sumter County, where Black residents make up a majority of the population but controlled just two of seven school board seats. And in 2018, state election officials settled a lawsuit allowing voters with limited ability to speak English to bring an interpreter of their choice to the polls.
Other cases are still pending after years of litigation, including the lawsuit brought by Fair Fight Action after Democrat Stacey Abrams’ loss to Kemp in 2018. The judge recently ruled against much of the case but held off on deciding Voting Rights Act claims until the Supreme Court clarifies standards for challenges in the Arizona case, Brnovich v. Democratic National Committee.
After evidence, hearings and possible appeals in the courts, the Justice Department’s challenge to Georgia’s voting law could also eventually reach the U.S. Supreme Court, years from now.
Challenged provisions of Georgia’s voting law
Absentee ballot applications: Government election officials are prohibited from mailing absentee ballot applications to voters unless they request them. Non-government organizations are only allowed to send absentee ballot applications to voters who haven’t already requested a ballot or voted.
Voter ID: Voters will be asked to write their driver’s license or state ID number on their absentee ballot application form and absentee ballot envelope. Voters who don’t have a driver’s license or ID card are able to return a copy of other identifying documents including a passport, military ID, utility bill, bank statement or government-issued check. The last four digits of a voter’s Social Security number is also an acceptable form of ID when returning a ballot, but not when applying for one.
Drop boxes: Absentee ballot drop boxes will only be allowed inside early voting locations and during in-person voting hours. The number of drop boxes is capped at one for every 100,000 active registered voters.
Food and water ban: Volunteers and organizations aren’t permitted to distribute free food or drinks to voters waiting in line. Refreshments can only be given to voters outside 150 feet of the outer edge of a polling place and at least 25 feet away from any voter standing in line. Poll workers are allowed to install self-serve water receptacles.
Provisional ballots: Ballots cast by voters who show up at the wrong voting location before 5 p.m. on Election Day won’t be counted. Previously, Georgia law allowed out-of-precinct voters to cast provisional ballots and have their votes counted for races in which the voter would have been eligible in his or her correct precinct.