The Department of Justice is not playing with Brian Kemp. On Friday, June 25, Attorney General Merrick Garland delivered on his promise to use all his statutory authority to protect the right to vote: He announced he was suing the state of Georgia for enacting a law he said the legislature passed to deny Black people that right.
In April 2020, the Georgia House speaker, David Ralston, a Republican, inveighed against the mailing of applications for absentee ballots to all registered voters. That, he said, would just “drive up turnout,” which would be “extremely devastating” to candidates he wanted to see win. Banning this method of giving voters easy access to absentee ballots was among the measures included in S.B. 202.
United States v. Georgiais a claim under Section 2 of the Voting Rights Act, which prohibits states from adopting practices that deny or interfere with the rights of U.S. citizens to vote because of their race or color. Before 2013, Georgia would have been unable to put S.B. 202 into effect without seeking approval from the Justice Department under Section 5 of the act, called preclearance, which presumably it would not have received. But the Supreme Court gutted Section 5 that year in Shelby County v. Holder. In dissent, Justice Ruth Bader Ginsburg opined that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Now, voters in Georgia are getting soaked, and the only tool the DOJ has to protect them is Section 2, a remedy that Ginsburg noted was weaker than Section 5 because faulty laws could remain in place for years, affecting minority voters in multiple election cycles.
THREE THINGS TO KNOW:
Michigan might be up next! Restrictive voting measures are justified as necessary to prevent voter fraud. But in Michigan, a GOP-led investigation concluded there wasn’t widespread fraud in 2020. The DOJ will focus on situations like this, where the facts demonstrate that fraud is offered as a pretext for sacrificing the rights of Black voters in an effort to win elections. The Georgia lawsuit is Garland’s warning to other states that election laws that disenfranchise minority voters are vulnerable to challenge, particularly when they have been transparently justified by allegations of fraud that state legislatures know to be untrue.
Garland, who called on the Senate to pass the For the People Act and the John Lewis Voting Rights Act so voting rights can be better protected, is unambiguously demonstrating that if he must, he will use existing statutory authority to protect the vote as aggressively as possible.
There is now a criminal task force; the Department of Justice created a task force to prosecute threats against election workers. Its members are from the DOJ’s Criminal, National Security and Civil Rights divisions, as well as the FBI. Deputy Attorney General Lisa Monaco sent a memo to all federal prosecutors requiring prompt and vigorous prosecution of these threats. She wrote that “a threat to any election official, worker, or volunteer is, at bottom, a threat to democracy.” This is a significant prioritization of criminal voting rights-related cases.