The U.S Supreme Court’s ruling that upheld provisions in Arizona’s election law because they did not violate the Voting Rights Act could make it more difficult for federal lawsuits challenging Georgia’s voting law to succeed.
Election law experts say Thursday’s ruling raises new doubts in most of the eight federal lawsuits alleging Georgia’s new rules will have a disparate impact on minorities.
In a 6-3 opinion, the high court ruled Arizona’s 2016 law doesn’t violate Section 2 of the Voting Rights Act and that it wasn’t enacted with a racially discriminatory purpose.
Justice Samuel Alito, writing for the majority, found that the plaintiffs in the case hadn’t adequately demonstrated that banning outside organizations from collecting ballots and Arizona’s policy of rejecting ballots that voters cast outside their precincts had a disparate impact on minority voters.
Similarly, Georgia’s new voting law also places limitations on when a voter can cast a provisional ballot if they show up at the wrong precinct.
Alito wrote the existence of disparities in the way a voting law affects racial or ethnic groups does not necessarily mean that an election system is not equally open to all voters. The size of those disparities must be taken into account, and small disparities are less likely than larger ones to signify unequal access to the election system.
Alito’s opinion says requiring voters to identify their polling place and travel there also does not exceed the “usual burdens of voting.”
“On the contrary, these tasks are quintessential examples of the usual burdens of voting,” Alito wrote.
The three liberal justices dissented, with Justice Elena Kagan arguing that the majority opinion undercuts the Voting Rights Act.
Georgia, she wrote, is one of the signature examples of states erecting new barriers through its recent voting law legislation. She cited rules that shortened the window to request and receive absentee ballots and banned people from passing out water and food to voters standing in line.
“Some of these restrictions may be lawful under the Voting Rights Act,” Kagan wrote. “But chances are that some have the kind of impact the Act was designed to prevent — that they make the political process less open to minority voters than to others.”
The Supreme Court order, published on the final day of this year’s term, creates a high standard to prove the extent that minorities and disadvantaged groups are harmed by the voting regulations, said Anthony Michael Kreis, a constitutional law professor at Georgia State University.
“It definitely made it harder to bring these kinds of disparate impact claims when you’re just looking at a kind of neutral measure and trying to suss out how it falls, or how the impact falls along different racial voting groups,” Kreis said.
The Supreme Court case is described as a litmus test guiding courts to interpret Section 2 of the 1965 Voting Rights Act as requiring discriminatory intent, as opposed to outcome. The landmark civil rights law prohibits voting and election rules from denying or limiting the right to vote based on race or color.
Democrats and voting rights activists called the news devastating but promised to continue to wage the battle in courts and in Congress.
Just last week, Georgia remained in the national forefront over the battle for voting rights when the U.S. Department of Justice filed suit against the state over the Republican-backed election overhaul state legislators passed in March.
The federal prosecutor’s lawsuit claims that new limitations on absentee drop box locations and deadlines to request ballots are attempts by Republicans to make it harder for Black Georgians to vote.
“The Attorney General has made clear, ‘the Department of Justice will never stop working to protect the democracy to which all Americans are entitled,’” the Justice Department said in a statement Thursday. “The department remains strongly committed to challenging discriminatory election laws and will continue to use every legal tool available to protect all qualified Americans seeking to participate in the electoral process.”
Bruce Adelson, a former Department of Justice civil rights attorney, called the ruling a “powerful federalism opinion.” He found it significant that the court gave so much weight to state interests and that the court shied away from using the federal judiciary to supplant state laws, though that was arguably the purpose of the Voting Rights Act in the first place.
“That does raise the bar for plaintiffs looking to challenge state laws to show … that if you’re going to claim that something deviates, OK, you’re going to have to have some pretty good proof of that,” Adelson told the Arizona Mirror.
Kreis said the DOJ lawsuit also takes a different approach to demonstrate discrimination.
“The Department of Justice is arguing that in its form, SB 202 is intentional discrimination,” Kreis said. “So in other words that the General Assembly invented SB 202 with the intent to discriminate against non-white voters.”
But Kreis and Mercer Law Professor David Oedel also say proving that lawmakers intended discrimination while crafting voting laws in Georgia and other states is a tough hill to climb.
Still, Oedel said there could be a silver lining now that the court provided a blueprint for future lawsuits to succeed.
“(Justice Alito) said the disparate impact can be a basis under Section 2 for throwing out some kinds of voting rules on time, place, and manner of voting,” Oedel said. “But he talks about the size of any disparity matters. He talks about how much of a burden does it impose on different groups.
“I think it’s going to have an impact on some individual lawsuits that are outstanding, but it will help people to structure more compelling lawsuits in the future,” Oedel added.
Thursday’s Supreme Court ruling won’t stifle another lawsuit challenging sections of Georgia’s law, a case asking a federal judge to grant a preliminary injunction to stop Georgia’s law from governing upcoming elections.
In the suit filed by the Coalition for Good Governance, the organization argues that Georgia now unfairly imposes a deadline of 11 days before an election to request an absentee ballot and imposes rules it claims violate the First Amendment.
President Joe Biden called the Supreme Court’s decision “deeply disappointing” and all the more reason for Congress to restore voter protections through the federal passage of the For the People Act and the John Lewis Voting Rights Advancement Act.
“While this broad assault against voting rights is sadly not unprecedented, it is taking on new forms,” Biden said in a statement. “It is no longer just about a fight over who gets to vote and making it easier for eligible voters to vote. It is about who gets to count the vote and whether your vote counts at all.”
But Republicans in the U.S. Senate have blocked the new voting rights legislation from advancing and a path forward is unclear as long as a filibuster is available to force Democrats to secure 60 votes in the evenly divided chamber.
Republican National Committee Chairwoman Ronna McDaniel said the significance of the Supreme Court’s decision is that it lends credence to the idea that states can best determine how to run their elections.
“Today’s United States Supreme Court ruling is a resounding victory for election integrity and the rule of law,” she said. “Democrats were attempting to make Arizona ballots less secure for political gain, and the Court saw right through their partisan lies.”
Georgia Secretary of State Brad Raffensperger also applauded the ruling, saying that a ban on ballot collecting, pejoratively called ballot harvesting, is one of the first steps he took after becoming the state’s top election chief in 2018.
“And requiring voters to vote in their correct precinct ensures that votes count in down-ballot races and makes election administration smoother,” Raffensperger said.
“In Georgia, it’s easy for eligible voters to vote. I call on the U.S. Department of Justice to heed this decision and dismiss their wrong, politically motivated lawsuit against Georgia.”
This story comes to GPB through a reporting partnership with Georgia Recorder.
