Is it Really Jim Crow 2.0? The DOJ Seems to Think So
November 3, 2021
By: Lubna Alamri
In March 2021, Georgia governor Brian Kemp signed into law the “Election Integrity Act of 2021”, a law that many have criticized as an effort by Republicans to suppress the minority vote after President Biden’s election and the Democrats’ win of both Senate seats in Georgia.
Most of the controversy surrounding the new law stems from its efforts to tighten limits on absentee voting . Among some of its more notable provisions, the law now requires voters to obtain a voter ID number in order to apply for an absentee ballot, cuts off absentee ballot applications 11 days before an election, and limits the number of drop boxes in each given county. One of the more unusual provisions includes a prohibition on the distribution of food and drink to voters waiting in lines, that is despite Georgia having some of the Nation’s longest waiting lines, especially in heavily minority populated areas.
Many groups have since come to challenge the new law in court. Most notably, the Department of Justice filed suit against Georgia, claiming that certain provisions of the law violate Section 2 of the Voting Rights Act of 1965. More specifically, that the provisions restricting absentee voting and the ban on distributing food in waiting lines were adopted with the intent to deny the right to vote on the basis of race. Although the DOJ is bringing this as an intentional discrimination “smoking gun” claim, much of its arguments rest on the law’s potential impact on minority voters. DOJ is alleging intent because of the legislature’s decision to enact the law despite testimony that warned of its impact on minority voters.
Shortly after the DOJ’s lawsuit was filed, the Supreme Court’s decision in Brnovich v. DNC came down, potentially complicating the DOJ’s efforts to challenge the Georgia law. In Brnovich, the Court decided whether an Arizona voting law that prohibits both out of precinct ballots to be cast on election day and third-party ballot collection disparately impacts minorities’ ability to vote in violation of Section 2, to which the Court held it did not. Although the Court did not get rid of the statute altogether, it did erect multiple hurdles for plaintiffs to jump through when bringing Section 2 claims.
The state in this case is vociferously trying to end the battle before it begins, arguing that the DOJ cannot bring an “exclusively intentional-discrimination claim,” because no such thing exists under Section 2. In its motion to dismiss, the state argues that a Section 2 claim requires a showing of disparate results, and that the DOJ’s failure to produce such allegations warrants dismissal. The state’s goal is to presumably force the DOJ claim into Brnovich territory, requiring them to prove disparate impact through Justice Alito’s five “guideposts” test.
In the majority opinion, Justice Alito provided five “guideposts” for courts to follow when determining whether a law disparately impacts minorities, in violation of Section 2(b)’s “equally open participation” command. Courts must look at size of the burden imposed, the degree to which the voting rule departs from the standard practice of Section 2 after its 1982 amendment, the size of any disparities that the rule has on members of a racial group, the opportunities provided by the state’s entire system of voting, and finally the strength of the state interests served by challenged rule.
In its response, the DOJ argues that the Brnovich decision in fact treats a Section 2 “results claim” distinctly from a “purpose claim,” requiring a different analysis for each claim. In a “purpose” claim, a court can look at both “circumstantial and direct evidence” to determine whether race was a motivating factor in the enactment of the law, whereas “results” claims are analyzed under Brnovich guideposts. According to the DOJ response, a purpose claim requires an assessment of circumstantial and direct evidence of intent in order to prove intentional racial discrimination on the part of the legislature in enacting the law. The DOJ contends that it has alleged such evidence in its complaint.
How will all of this affect the DOJ’s challenge to the Georgia law? It’s unclear. Depending on how the court rules on the results versus intent claim, the DOJ might be facing an uphill battle either way. Fortunately, racist positions and intentions are not freely expressed in legislatures anymore, and states may have strong arguments to counter an intentional discrimination claim. Additionally, a post Brnovich world is not a friendly one to disparate impact cases and there are many hurdles to jump through to successfully argue such claims in court.
If this case finds its way to the Supreme Court, the future of Section 2 may very well be on the line.