On Friday, Attorney General Merrick B. Garland announced that the Justice Department has filed a lawsuit challenging voting laws in Georgia. The announcement came on the eighth anniversary of the U.S. Supreme Court’s decision in Shelby County v. Holder. That timing is likely no coincidence.
In 2013, the Supreme Court struck down a portion of the Voting Rights Act of 1965 and its 2006 reauthorization, known as Section 5. Section 5 required certain states to obtain pre-clearance from federal authorities before changing their voting laws to ensure that they did not deny or abridge the right to vote based on race. Congress had imposed this requirement on certain states, such as Georgia, with a history of discriminating against Black voters. In his majority opinion for the Court, Chief Justice John Roberts wrote in 2013 that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” Those words have proved to be naïve.
Since that time, we have seen a surge of voting laws passed in a number of states across the country, like the one recently passed in Georgia. The Georgia law, enacted in March, limits the number of ballot drop boxes, shortens the deadline to request an absentee ballot to 11 days before Election Day, restricts the use of provisional ballots, and makes it a crime to provide food or water to voters waiting in line, among other things. Drop boxes have been used to a great extent in Fulton County, the state’s largest county and one with a majority Black population.
Without the preclearance requirement of the now defunct Section 5, the Justice Department is relying on a different part of the Voting Rights Act, Section 2. That section prohibits laws that deny or abridge the right to vote on the basis of race, color or language. The DOJ lawsuit contends that the Georgia lawmakers knew that the law would have a discriminatory effect on Black voters when it was adopted.
The Georgia laws were enacted following electoral victories by Joe Biden in the presidential election and two Democrats in a runoff election for U.S. Senate. The state’s Republican governor, Brian Kemp, has stated that these laws were needed to make it “harder to cheat” in elections. In fact, there is no evidence of election fraud in Georgia or elsewhere, despite repeated claims by former President Donald Trump that the election was stolen. Georgia Secretary of State Brad Raffensperger has called claims of election fraud there “disinformation.” Instead, lawmakers seem to be using fraud as a pretext to pass laws that will restrict the votes of likely Democratic voters to improve the outcomes of elections for Republicans. DoJ does not seek to favor Democrats or Republicans, but because these laws allegedly have a disparate impact on Black voters, they are illegal.
In addition to the lawsuit, Deputy Attorney General Lisa Monaco also announced on Friday that she was directing U.S. Attorneys and FBI Field Offices to investigate and prosecute threats against election officials, an important step to preventing intimidation tactics in the administration of elections.
The announcement comes just one month after Kristen Clarke was sworn in as Assistant Attorney General for the Civil Rights Division, and two weeks after Garland announced an expanded effort to protect voting rights. These words backed up by action demonstrate an urgency by the Justice Department to combat a wave of election laws that are being enacted in states across the country that restrict voting rights. As Garland said, “The right of all eligible citizens to vote is the central pillar of our democracy, the right from which all other rights ultimately flow.”
Garland indicated that the Georgia lawsuit would not be the last action by the Justice Department to enforce voting rights. “This lawsuit is the first step of many we are taking to ensure that all eligible voters can cast a vote, that all lawful votes are counted, and that every voter has access to accurate information,” he said. In response to questioning, Garland said that DOJ is monitoring other states that have recently enacted or are considering similar laws that restrict voting rights. In that way, this lawsuit could have the effect of not only invalidated Georgia’s voter suppression laws, but could also deter other states from going down the same path.
Of course, filing lawsuits to challenge illegal laws one at a time is less efficient than preventing violations of voting rights in the first place. Passing the For the People Act would prevent states from erecting the types of barriers that are at issue in the DOJ lawsuit. But until then, Garland and his team cannot wait around for a dysfunctional Congress to do its job.
Eight years ago, the Shelby County decision opened the floodgates for Republican-controlled legislatures to pass laws making it more difficult for people to vote. Garland’s DOJ has signaled its intent to slam them closed.
