“The Department of Justice is going to lose,” Georgia Secretary of State Brad Raffensperger told me during a Friday interview, referring to the Voting Rights Act lawsuit the Biden administration filed against Georgia a little more than a week ago. Georgia has been vindicated by the Supreme Court, Raffensperger added, stressing in last week’s interview that the high court’s decision in Brnovich v. DNC rendered the DOJ’s claims frivolous.
A thorough analysis of the Supreme Court’s decision in Brnovich confirms Raffensperger’s assessment. In that case, the court held that Arizona’s in-precinct voting requirement and ban on ballot harvesting did not violate Section 2 of the Voting Rights Act, which prohibits any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”
While the Supreme Court upheld Arizona’s in-precinct voting requirements, the DOJ continues to argue that Georgia’s similar provision violates Section 2, Raffensperger noted. In response to Raffensperger’s “call on the U.S. Department of Justice to heed this decision and dismiss their wrong, politically motivated lawsuit against Georgia,” the DOJ “doubled down,” the secretary said. “But they will lose sooner or later,” he noted.
Precedent Shows How Frivolous Biden’s Lawsuit Is
Beyond the bottom line in Brnovich—that Arizona’s similar in-precinct voting mandate is valid—the Supreme Court’s reasoning confirms the frivolousness of the Biden administration’s entire lawsuit against Georgia. In Brnovich, the high court addressed for the first time the meaning of Section 2’s “results in a denial or abridgment” of the right to vote based on race or color in the context of “generally applicable time, place, or manner voting rules.” The court laid out several guideposts for assessing whether voting is “equally open,” as required by Section 2.
The guideposts the Brnovich court delineated include: “the size of the burden; the degree to which the voting rule departed from the standard in 1982 when Congress amended Section 2; the size of the disparity of the rule on minorities; the opportunities provided by the state’s entire voting system; and the strength of the state’s interests in the law.”
Applying these guideposts to the provisions of Georgia’s Election Integrity Act of 2021 that the Biden administration is challenging establishes the DOJ’s lawsuit is completely lacking in merit. None of the challenged provisions create a high burden to voters, but, in the language of the Brnovich court, represent the “normal burdens of voting.”
For instance, the DOJ complained that Georgia prohibits distributing unsolicited absentee ballot applications and bars private organizations from distributing duplicate absentee ballot applications, but the burden of requesting an absentee ballot online or in person is minimal. Likewise, Georgia’s requirement that in requesting an absentee ballot voters provide their driver’s license number or a photocopy of another form of identification, such as a utility bill, represents a minor burden, easily satisfied.
Raffensperger stressed this in his Friday interview, noting that the state’s move to requiring a driver’s license number, birth date, or other forms of identity are very easy to provide. “Minnesota is pleased with this system,” he told The Federalist, stressing that that midwestern state, which has a Democrat governor, Democrat secretary of state, and a Democrat House, uses a similar method of verifying absentee voters.
It’s Not Burdensome to Do What Everyone Else Does
Similarly, the other provisions of Georgia’s Election Integrity Act of 2021, although challenged by the DOJ, impose no burden beyond the typical burden bearing on all voters. For example, while the DOJ complains that Georgia limits the time period for requesting absentee ballots, limits on the number and location of absentee ballot drop boxes, and bans the distribution of food or drinks by private organizations to persons waiting in line, requesting ballots on a timely basis and returning those to the appropriate locale represent the minimal burden placed on voters. Likewise, bringing food or drink should you believe you’ll need refreshments during a wait does not burden voters.
Not only do these provisions not establish a burden beyond the general burden of voting, Georgia provides ample alternative opportunities to vote, from absentee voting to early voting to same-day voting. To the extent any of these provisions were not common in 1982, that is because drop boxes and no-cause absentee voting were not prevalent at that time. Georgia also has a strong interest in preventing fraud and undue influence—and these new provisions address these valid concerns, especially in light of the increase in absentee voting.
Moreover, while in its complaint against Georgia the DOJ portrayed the challenged provisions as affecting minority voters at a higher rate, voting remains “equally open,” meaning “without restrictions as to who may participate.” Further, in Brnovich the Supreme Court expressly rejected “the disparate-impact model employed in Title VII and Fair Housing Act cases,” meaning a disproportionate impact on minority voters is not dispositive.
Yes, Anti-Fraud Provisions Are Reasonable
In addition to the guideposts adopted in Brnovich, the Supreme Court’s analysis and its response to the arguments made in attacking Arizona’s voting-integrity provisions further expose the folly of the DOJ’s lawsuit against Georgia. For instance, in Brnovich, the Supreme Court noted that while the lower court found the legislative goal of preventing fraud “tenuous in large part because there was no evidence of fraud in connection with early ballots had occurred in Arizona, . . . it should go without saying that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”
The DOJ’s complaint against Georgia presents this precise argument, alleging that “the lack of evidence of voter fraud in the 2020 election cycle, . . . tend to undermine justifications proffered by proponents of SB 202, providing evidence that the proffered rationales for the bill’s provisions are tenuous.” While the Biden administration filed its lawsuit against Georgia before the Brnovich decision, the Supreme Court’s holding makes clear now that this argument lacks merit: Georgia need not have evidence of voter fraud to pass a law to prevent voter fraud.
Further, in Brnovich, the Supreme Court rejected the argument that an Arizona legislator’s “unfounded and often far-fetched allegations of ballot collection fraud” tainted the law. “Under our form of government,” Justice Samuel Alito, writing for the majority, explained, “legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools.”
Thus, the Biden administration’s attempt to challenge the Georgia law by stressing that one senator supporting the legislation attended a hearing where unfounded claims of voter fraud were presented will fail because, as Brnovich explained, individual legislators’ motive cannot be ascribed to the legislative body.
Republicans Are Allowed to Vote, Too
The Brnovich opinion also made clear that partisan motives are not the same as racial motives, establishing that the DOJ’s focus in its complaint on the fact that Georgia’s law passed along party lines is irrelevant.
Also irrelevant were the allegations the DOJ made in its lawsuit against Georgia concerning a racist GIF targeting an election worker, a racist message threatening then-candidate Raphael Warnock, and a racist robocall about 2018 Georgia gubernatorial candidate Stacey Abrams. In Brnovich, Justice Alito, writing for the majority, criticized attempts to establish a racial motive underlying Arizona’s law based on a “racially-tinged” video created by a third party, noting there was “no evidence that the legislature as a whole was imbued with racial motives.”
While the DOJ’s lawsuit against Georgia was frivolous before Brnovich, the Supreme Court’s recent decision ratchets up the Biden administration’s continued pursuit of this litigation to the potentially sanctionable territory. More significant than the question of whether Georgia seeks, or obtains sanctions, however, are the ramifications of Brnovich on Georgia’s attempt to shore up voting integrity in the state. Specifically, Brnovich makes clear that Georgia’s Integrity Act of 2021 will remain law, and that is the first start to reassuring Georgians and their fellow Americans that the state takes voting integrity seriously.
2020’s Voting Chaos Must Never Happen Again
More must be done, though, as questions over the 2020 election remain unanswered. The secretary of state’s office appears to recognize the importance of transparency regarding concerns about the 2020 election, for instance by announcing two weeks ago an investigation into Fulton County following the revelation that it is unable to produce all ballot dropbox transfer documents.
Raffensberger confirmed to me on Friday that those documents have since been provided, but it is nonetheless reassuring that Raffensberger continues to launch investigations when necessary to ensure compliance with the governing laws.
However, when questioned on the status of the investigation into evidence indicating more than 10,000 voters illegally cast ballots in a county in which they had not lived for more than 30 days—a move later confirmed when the voters updated their voter registration records—Raffensberger could not provide definite information. The secretary’s staff has promised further details following discussions with the investigators, and has committed to arranging an interview for The Federalist with the lead investigator.
Such transparency will prove indispensable for Georgia and Raffensberger to move forward from the 2020 election, as voting integrity involves more than establishing new rules: It requires an acknowledgment of past failings, and solutions to ensure they are never repeated again.