The United States lawsuit challenging Georgia’s new, highly restrictive voting law is likely to be more of a slow burn than fast-paced litigation. The Department of Justice’s patience may place Georgia’s lawmakers under a microscope by making their intent the subject of subpoenas. To understand how this could happen, we have to know a little bit about the complaint and the options open to the DOJ.
What did the DOJ allege?
On June 25, 2021, the DOJ filed a complaint in the Northern District of Georgia and before Judge J.P. Boulee, a Trump appointee, asserting that provisions of the Georgia law SB 202 violate Section 2 of the Voting Rights Act of 1965. SB 202 passed this March in the wake of the Democratic victories in Georgia in contests for president and Georgia’s two U.S. Senate seats. SB 202 was a substantial change to Georgia election law. Among other things, it restricts mail-in absentee voting, limits use of provisional ballots, and creates new voter ID requirements. Most notoriously, it prohibits giving food and water to voters waiting in line to vote.
According to the DOJ, the legislature designed those provisions to negatively impact Black voters. In addition to setting out the likely effects of the law on Black voters at the statistical level, the complaint also goes into detail about the context in which the Georgia law passed, including discussing at length the presidential election; threats and racist statements made to various candidates; deviations from usual legislative procedure during the passage of SB202, and the actions and statements of specific Georgia lawmakers involved in the process.
The gist of these allegations is that the Republican-led Georgia legislature did not like the outcome of the presidential and senate elections, and their solution was to quickly institute changes to Georgia’s voting laws to target Black voters in the hopes of suppressing their ability to vote and thereby affecting future election outcomes.
The DOJ is seeking three things. First, it wants the Court to prohibit Georgia election officials from enforcing the problematic provisions of the Georgia law, effectively nullifying those provisions. Second, it is asking the court to authorize federal observers, who would have access to any poll site during Georgia’s elections and would report their observations to the Attorney General. Finally, it is asking the Court to require Georgia to obtain preclearance of any new voting changes, that is, require Georgia to file any future proposed changes with the Court and provide the DOJ an opportunity to comment and object to the changes.
Georgia had been subject to preclearance procedures under Section 5 of the Voting Rights Act from its original passage in 1965 until 2013 when the Supreme Court ruled in Shelby County v. Holder decided in a 5-4 vote that Congress’ reauthorization of Section 5 was unconstitutional. Since that time no state has been subject to preclearance procedures.
What does the DOJ have to prove?
This is one of the big open questions about this lawsuit. The DOJ is suing under Section 2 of the Voting Rights Act, which prohibits any voting procedure that “results in the denial or abridgement” of the right to vote “on account of race or color.” In March, the Supreme Court heard arguments in Brnovich v. Democratic National Committee, a case that will resolve what standard applies to cases under Section 2 as the federal courts currently disagree about what it requires. Some courts say that the DOJ can make its case showing a negative, disparate impact of the voting rules on minority voters and a history of such discrimination in the state. Other courts say that it has to show something more—for example, that the rules change the opportunities available to impacted minority voters, or some level of intent to impact voters by race or color.
The DOJ’s complaint accounts for a range of possible standards. It alleges the statistics and history show Georgia’s law will negatively impact Black voters. But it goes much further in expressly stating that the parts of the Georgia law it has challenged were passed “with the purpose of denying or abridging Black citizens’ equal access to the political process.”
This signals that the DOJ is looking at the intent behind passage of the Georgia law. Intentional voter suppression is likely to satisfy even the most conservative standard for relief under Section 2. The DOJ devotes a significant space in the complaint to the actions and statements of the Georgia legislature, including identifying key legislators involved in the passage of the bill.
For example, the complaint notes that attorneys responsible for the barrage of meritless voter fraud lawsuits filed throughout the United States in the aftermath of the 2020 presidential election gave testimony to the Georgia Senate Judiciary Committee that made its way into SB 202; that various state lawmakers put out a statement in support of lawsuits seeking to overturn the electoral result in Georgia, and that even Lieutenant Governor Geoff Duncan later acknowledged that the impetus for the Georgia law “was fueled by the very misinformation sowed in those committee hearings.” Georgia Reps. Barry Fleming and Chuck Martin, supporters of SB 202, are called out for making public statements calling into question the trustworthiness of absentee voting. Rep. Flemming, who chairs the committee specially created to take up SB 202, is also accused of sandbagging opponents of the bill by substituting the original three-page bill with a 90-page bill less than a week before the final vote on it.
Any person specifically named in the complaint should not be surprised if they receive a government subpoena. Given that such a subpoena would legitimately seek any documents that may show a “purpose” or intent, those subpoenas could be quite probing.
Is this case going to the Supreme Court soon?
It depends, but probably not. Right now, the DOJ has only filed a complaint. Without an additional hook, this case will have to completely play out at the trial court, and it may take 18 months or more before it can be kicked up to a Court of Appeals.
In this scenario, Georgia will likely move to dismiss, which, depending on the judge, can take anywhere from three months to a year to resolve; then, assuming the case is not dismissed, there will be discovery—the collection and exchange of documents and testimony—which takes at least six months; then more motion practice, eating up at least another six months; and finally, maybe, a trial.
The DOJ could speed things by seeking a preliminary injunction in which it asks the Court to give some or all of relief the DOJ wants in the end sooner because if the court doesn’t there will be irreparable harm—like someone’s vote being suppressed. An order either granting or denying a preliminary injunction is immediately appealable.
But a preliminary injunction now seems unlikely. The next general election, which is exclusively local and municipal races, isn’t until November, and the next federal and statewide elections aren’t until next year. Also, seeking a preliminary injunction now would mean forgoing the opportunity to obtain some interesting discovery from the state of Georgia and individual state legislators. That discovery could strengthen the DOJ’s claims about the purposes of SB 202, and make any preliminary injunction motion closer to the election much likelier to succeed.
Finally, will the lawsuit succeed?
It is simply too early to tell. It also depends a lot on what one means by success. Whether the case will change Georgia’s laws is not clear, but SB 202 does smack of overreach, especially in the DOJ’s telling. Other states with similar new laws on the books, or being proposed now, are definitely watching to see how this lawsuit plays out, and it is unlikely that this will be the last voting rights suit out of the DOJ—especially if states like Texas and Arizona move forward with their versions of SB 202.
It will also be interesting to see what federal prosecutors unearth in the emails and other correspondence of Georgia lawmakers. The whole case may be a vehicle to shine light into the workings of the Georgia legislature, and reveal the networks that make laws like SB 202 possible. We will have to wait and see as it unfolds.
