A Non-Lawyer’s Guide to Voting Rights

We hear a lot about voting rights these days. The law keeps changing, and each side is consistent in its support (or opposition) to the change. First the majority-Republican Georgia General Assembly passed a sweeping new elections bill, SB 202, without any Democratic support. Then the Supreme Court upheld Arizona voting laws similar to some in Georgia in a decision called Brnovich.

All six justices voting for Brnovich were appointed by either George W. Bush or Donald Trump; the three justices who dissented were appointed by either Bill Clinton or Barack Obama. Republicans and conservatives claim that SB 202 and Brnovich prevent election fraud, while Democrats and liberals allege that SB 202 and Brnovich suppress minority votes. This blog post attempts to explain these issues in comprehensible terms to a lay person.

Election Laws: A Primer

State election laws, such as SB 202 and the Arizona statutes, must comport with the United States Constitution, the applicable state constitution, and any federal voting laws such as the Voting Rights Act and the National Voter Registration Act. The United States Constitution permits states to determine the “time, manner, and place” of elections, but the 15th Amendment, passed shortly after the Civil War, prohibits discrimination against minorities in state election laws.

Of course, we all know that many states, including Georgia, found ways around the 15th Amendment and prevented Black people from voting between roughly 1890 and 1965, the era of “Jim Crow.” These states circumvented the 15th Amendment by passing laws that were racially neutral but disproportionately impacted Black people, such as literacy tests and polling taxes. So, everyone, including White people, had to pass the literacy test and pay the polling tax, but it was harder for Black people to do so, and so prevented them from voting in much greater numbers than White people.

The Voting Rights Act

In 1965, shortly after John Lewis was beaten on the Edmund Pettus Bridge in Selma, Alabama, the United States Congress passed the Voting Rights Act. Under the Voting Rights Act, there are two theories by which to challenge a voting law as being unfair to minorities. The first is to allege that the law was passed with the purpose or intention of discriminating against minorities. The second is to allege that the law has an unfair effect (“disparate impact”) against minority votes. Until Brnovich, the conventional wisdom in legal circles was that it was easier to prove that a law had an unfair effect on minority voting than to prove that it was passed with the intent to discriminate against minorities.

The Voting Rights Act provided for two different ways to enforce these theories. Section 2 provided for lawsuits filed by private plaintiffs or the federal government. Until 2013, Section 5 required certain states with a history of racial voter suppression, including Georgia, to “pre-clear” all new voting laws with the Department of Justice before the laws could go into effect. Section 4 specified how to determine which states were subject to Section 5, or “pre-clearance.” Between 1965 and 2013, all changes to elections in Georgia had to be pre-cleared.

If the Department of Justice said the law was fair, it could go into effect. In 2013, in a case called Shelby, the Supreme Court threw out Section 4, finding that the formula for determining who was subject to pre-clearance was outdated. While Congress could pass a new formula for pre-clearance, it has not done so. Since Shelby, Georgia has been able to pass whatever law it likes without having to submit it to the Department of Justice to see if it is fair.

Arizona Election Laws Reviewed by the Supreme Court (and Georgia Parallels)

In 2016, Arizona passed two laws that the Supreme Court reviewed in Brnovich. The first law stated that any ballot cast in the wrong precinct on Election Day could not be counted, even in races such as Governor or Senator that were state-wide and not dependent on voting in the proper precinct. This law is very similar to a new provision in SB 202, which states that any ballot cast in the wrong precinct before 5pm on Election Day will not be counted at all.

Before SB 202 was passed, meaning during the 2020 General election and the subsequent run-off, county election officials still had to count votes for races not dependent on the specific precinct. So if you voted in the wrong precinct on January 5, 2021, your votes for the two Senate races still counted, because those are state-wide races. Now, under SB 202, none of your votes will count unless your ballot was cast after 5pm.

The second Arizona law Brnovich reviewed stated that only family members could return absentee mail-in ballots. This prohibits third parties, such as political campaigns and other interest groups, and also your next door neighbor, from touching your absentee ballot, a practice that is sometimes referred to as “ballot harvesting.” Georgia has always had a law like this, and while it is not consistent with laws on other types of important documents (anyone can mail your tax return, for example), it does minimize the likelihood that a third-party can intimidate, or more likely bribe, someone to vote a certain way via absentee ballot. (Because Georgia’s prohibition on ballot harvesting predates SB 202 I will not discuss that part of the Brnovich decision further.)

Although the Arizona law prohibiting counting out-of-precinct votes cast on Election Day applied to everyone, regardless of race, the plaintiffs provided statistical support that while the total number of votes affected by this provision was small, Black and Native American voters were more likely than White voters to vote in the wrong precinct on Election Day and thus have their votes suppressed.

The Supreme Court’s Ruling in Brnovich and the Possible Impact on Georgia

The “conservative” majority on the Supreme Court decided that because the number of votes affected was so small, and because voters could vote in-person for 27 days before Election Day, that the prohibition against counting out-of-precinct votes cast on Election Day did not violate Section 2. The majority also said that if a law’s purpose was to combat election fraud then it would be less likely to violate Section 2 even if the law had an unfair effect on minority votes. Finally, the majority said that when considering whether a law violated Section 2, courts should consider whether the law was in effect in 1982, the last time Congress amended the language of Section 2.

This last “guideline”—as the majority termed it—is the most troubling because elections have changed drastically since 1982. Back in 1982, there was no early, in-person voting and no no-excuse absentee mail-in voting. You either voted in person on Election Day or you had an excuse to get a mail-in ballot. Further, election equipment was much different than today, and the number of people voting, especially in Georgia, was much smaller.

Today, according to the Department of Justice lawsuit, almost 10 million people live in Georgia and over 7 million are eligible to vote. The number of Congressional districts in Georgia, which is based entirely on population, has grown from 10 in 1982 to 14 in 2020. Election machines are high-tech and expensive, and counties budget the number of machines they need based on how many people will vote on them. Obviously, counties need fewer machines if they can spread the machines out over three weeks of early voting than if the machines have to be used only on Election Day.

Unfortunately, the Brnovich decision suggests that if the Georgia General Assembly eliminated early in-person voting (something it briefly considered this year before actually expanding early in-person voting in SB 202), it would not violate Section 2. However, it is likely that offering only Election Day in-person voting would cause enormously long lines and, as a result, suppress voter turnout.

“Discriminatory Intent” and SB 202

But one thing that is getting lost in all the commentary on Brnovich is that its decision is based on whether a law has an unfair effect on minority votes—not whether the law was passed with a discriminatory purpose. What Brnovich does have to say about whether a law will violate Section 2 because it was passed with discriminatory intent should cause concern amongst defenders of SB 202.

According to Brnovich, determining whether a law has a discriminatory purpose or intent requires courts to consider:

  • The historical background and sequence of events leading to the law’s enactment;
  • Departures from the normal legislative process;
  • Relevant legislative history; and
  • The Law’s impact on different racial groups.

So far, eight lawsuits have been filed alleging that SB 202 violates either the United States Constitution, Section 2 of the Voting Rights Act, or both, because it was passed with intent to discriminate and because it has an unfair effect on minority votes. Seven are filed by private plaintiffs such as the NAACP and Asian-Americans Advancing Justice–Atlanta, but the most recent is filed by the United States Department of Justice.

Most, if not all, of these lawsuits explicitly track the Brnovich factors listed above, summarizing Georgia’s history of Black voter suppression; the fact that SB 202 was passed in light of the election of two non-White candidates, Senator Raphael Warnock and Vice President Kamala Harris; and then detailing the highly irregular way in which the Georgia General Assembly passed SB 202 this spring.

For example, the Department of Justice complaint explains how SB 202 started as a three-page bill that the Senate passed on March 8, 2021. It then went to the House for consideration, where, on March 17, Representative Barry Fleming replaced the three-page bill with the current, 90-page version of the bill, giving other legislators very little time to review it. When SB 202 reached the full House for a vote on March 25, debate lasted less than two hours, despite requests for more time to study the bill.

SB 202 returned to the Senate that afternoon, was quickly passed, and Governor Kemp signed it that evening flanked by only White men in front of a painting of a plantation. So, even if Brnovich makes it highly unlikely that any of the plaintiffs challenging SB 202 will succeed in getting a court to declare it unlawful because it has an unfair effect on minority votes, these plaintiffs may succeed in convincing a judge that SB 202 is unlawful because it was passed with discriminatory intent.

In fact, the Department of Justice’s complaint, filed shortly before the Brnovich decision, does not allege that SB 202 violates Section 2 because of unfair effects, but only that SB 202 violates Section 2 because it was passed with discriminatory intent. All eight lawsuits are before the same judge, so decisions in each one will be consistent with one another.

Certainly, it will be interesting to see where all of this goes from here. Stay tuned.

Categories: Election Law

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