John Kruzel and Rebecca Beitsch in The Hill:
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….
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.”