Further Analysis of the DOJ Suit Against Georgia

I want to add an additional comment to the points Rick Hasen has flagged about the DOJ suit. DOJ’s strategic decision to avoid claiming that GA’s law violates the “results” test of Section 2 certainly reflects a judgment that winning on this claim in the lower courts might well end up providing the Supreme Court an opportunity to cut back on the “results test” or, even more dramatically, hold the results test unconstitutional.

But the DOJ does not control the litigation strategy of all the non-governmental groups that are highly active these days litigating VRA cases. Will these groups take this signal from DOJ and also decide to litigate Section 2 cases only as discriminatory purpose cases and abandon “results” based claims, at least until the composition of the Court changes? In this case, the LDF has already brought a separate complaint that relies on the results test, in part. It will be interesting to see if LDF’s approach changes or not. More generally, despite DOJ’s judgment, will it be these private groups that push the “results” test onto the Supreme Court’s agenda, beyond the AZ case currently pending?

To be sure, DOJ’s strategy might evolve, since this is its first entry into using the VRA to challenge newly enacted state voting law changes. But for now, it appears that DOJ does not consider it prudent to invoke the results test of Section 2 before the current Court.

Update: As some of have noted to me, it is also possible DOJ is waiting for the AZ case to come down and will then amend this complaint to add a count based on the “results” test. We will soon learn whether that’s the case.

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