Analysis: DOJ’s Savvy, Strategic, and Very Ambitious Complaint Against Georgia’s New Voting Law (Includes Link to Complaint)

DOJ has now posted the complaint it has filed against the new Georgia voting law and it is a very calculated and strategic legal filing. Here are my initial thoughts:

  1. DOJ has authority to bring suit under Section 2 of the Voting Rights Act but it cannot sue directly for intentional voting rights constitutional violations under the 14th or 15th amendments. It does have authority to intervene in other suits raising an intentional 14th amendment claim (so perhaps we will see intervention in the NAACP LDF suit or another). So this suit raises only a Section 2 claim.
  2. Most Section 2 claims are brought claiming that a state or locality has passed a law with a racially discriminatory effect, a generally easier standard to prove than racially discriminatory purpose. In fact, Section 2 was amended in 1982 (over the objections of now-Chief Justice John Roberts, then working for the Reagan Administration) to allow claims for discriminatory effects. The Supreme Court has weighed in many times on how discriminatory effects works in the redistricting context, but never for vote denial claims where a state has made it harder to register and vote. That issue is pending right now in Brnovich, which should be decided next week. The Court could well make bringing such claims harder (though there’s reason for some hope about the Court fracturing and leaving a standard that still allows plaintiffs to win sometimes).
  3. Perhaps given the uncertainty of Brnovich, the DOJ suit claims only discriminatory purpose. This insulates it from an adverse ruling in Brnovich as well as doesn’t give the courts another opportunity to water down the Section 2 effects test. It is highly unusual to see a section 2 case that raises only discriminatory purpose. (The LDF suit raises both).
  4. The timing is interesting: lots of us expected the Court to issue Brnovich today, and this may have been a planned response to show that DOJ can still file even after a potentially adverse ruling.
  5. The use of intentional discrimination also allows the DOJ to ask for Georgia to get observers and be “bailed” back into coverage under the preclearance rules that used to apply through Section 5 to Georgia (until the Supreme Court’s Shelby County decision). It’s a tough road: earlier attempts to bail in Texas and North Carolina have failed, despite court findings of intentional discrimination. But it shows DOJ on the offense.
  6. Lower courts have recognized that Section 2 allows for discriminatory purpose claims, even though the text of Section 2 speaks only of discriminatory effects. The Republican Party in its Brnovich filing in the Supreme Court recognized that Section 2 covers discriminatory purpose claims: “The Fifteenth Amendment and § 2 of the VRA prohibit intentional racial discrimination.” But I expect we will now see textualist arguments that it doesn’t.
  7. Stay tuned: this will be interesting.
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