Georgia On My Mind: The Biden Administration Doubles Down on New Challenge Despite Victory of Arizona In Voting Case

Below is my column in USA Today on the Supreme Court’s rejection of the challenge to the Arizona’s new election rules. The 6-3 decision undermines the claims raised in the new challenge to Georgia’s election law.  Indeed, the Biden Administration is pursuing a new challenge that could result in a sweeping loss under the Voting Rights Act.

Here is the column:

With its decision Thursday in the voting rights case of Brnovich v. Democratic National Committee, the court closed its term with a decision that will resonate not just legally but politically for years to come.

The 6-3 decision upheld Arizona’s new voting rules in Arizona over claims of racial discrimination. While the court said it would be imprudent to create a sweeping rule for all future such cases, it was equally imprudent for the Biden administration to ignore the forthcoming decision in filing a new challenge to Georgia’s new voting rights. The lawsuit against Georgia’s new voting rules was clearly timed to beat the court to the punch, but Brnovich delivers a haymaker for those seeking to block such state laws. Indeed, the decision magnifies the concern that the Georgia challenge is more of a political than a legal statement from the Biden administration.

In his majority opinion, Justice Samuel Alito upheld two new voting rules in Arizona that barred “harvesting” of votes by political groups and discarded ballots cast in the wrong precinct. The lower courts divided on the question. Some rejected the discrimination claims. However, the Ninth Circuit reheard the case and struck down the provisions. Alito rejected claims that such laws are presumptively racist and more narrowly construed the reach of Section 2 of the Voting Rights Act, which forbids restrictions that abridge the right to vote on account of race.

The Supreme Court agreed with a lower court that upheld the laws, that “the spark for the debate over mail-in voting may well have been provided by one Senator’s enflamed partisanship, but partisan motives are not the same as racial motives.”

Many of us anticipated the reversal of the Ninth Circuit. That appears to include many in the Biden administration. Usually when the court is about to issue a major interpretation of a federal statute, the Justice Department will wait to read the opinion before filing a major action.  Instead, the administration filed the challenge to Georgia’s new voting law just days before the end of the term.

The problem with the filing was captured by President Joe Biden himself who repeatedly misrepresented the Georgia law, calling it  “Jim Crow on steroids.” Even The Washington Post awarded him four “Pinocchios” for his characterization of the law. For example, Biden declared, “it’s sick. It’s sick … deciding that you’re going to end voting at 5 o’clock when working people are just getting off work.” Biden repeated this claim despite it being untrue. The election law actually does the opposite. It guaranteed that, at a minimum, polls would remain open for a full workday while allowing extended hours commonly used on Election Day.

Biden also claimed that the law prevents water from being given to voters waiting in line at polling places: “Imagine passing a law saying you cannot provide water or food for someone standing in line to vote, can’t do that? C’mon!” That is also untrue.

The law does not prevent providing water to people standing in line. The law allows “self-service water from an unattended receptacle” for voters waiting in line. Instead, it blocks campaigns from directly supplying such drinks and allows anyone to give water to voters outside of a limited area around the polling place. In reality, the Georgia law has considerable overlap with provisions in other states.

Nevertheless, the complaint in United States v. Georgia hits these same provisions.

While the court just stated a narrow interpretation of Section 2, the Biden administration advanced a sweeping interpretation and a strikingly unfocused claim of racial discriminatory impact. While the claims are not identical, this case will now go forward in conflict not only with the general thrust of Brnovich, but in reliance on the same type of presumptions of racism rejected by the court. This follows the court’s 2013 decision in Shelby County v. Holder that effectively ended preclearance requirements for states like Georgia under the Voting Rights Act.

Ironically, the Justice Department filed on the eighth anniversary of the Shelby decision, but chose to file before it could read the last post-Shelby opinion on laws burdening the right to vote. In the new decision, the court declared that all voting rules create some sort of burden but “mere inconvenience cannot be enough to demonstrate a violation of Sec. 2.”

None of that bodes well for the Georgia lawsuit. Indeed, it strongly suggests that the Biden administration is setting itself up for failure. The case is weak, the precedent is hostile, and timing is suspect. So why would Attorney General Merrick Garland green light a case that seems likely to fail in spectacular fashion?

While I have great respect for Garland, this does seem like a rare moment of weakness in yielding to political pressure from the White House and Congress. The lawsuit legitimates Biden’s over-heated rhetoric on Republicans dragging the nation back into the Jim Crow era.

Garland has been under increasing pressure for failing to use the Justice Department more aggressively against Republicans. Critics want the Justice Department to get with the program and support these key narratives going into the midterm elections. Washington Post columnist Jennifer Rubin just a few months ago heralded Garland in a headline as “the right pick” for attorney general but in June denounced him as “the wrong man” for not using the department to pursue Trump and Republicans.

The Justice Department has long followed a “first do no harm” approach to lawsuits. If you truly value voting rights, you do not want to advance cases that are likely to fail and further limit voting rights laws. Instead, the Biden administration filed a lawsuit before hearing from the court on the very provision that it is raising in lower courts. Those lower courts are required to follow precedent of the Supreme Court, not the politics of the moment.

In her dissent to Brnovich, Justice Elena Kagan criticized the “cramped reading” of the court that “undermines Section 2 and the right it provides.” However, the Biden administration just filed a Section 2 case that would easily take a “cramped reading” and turn it into a categorical disaster just before the 2024 presidential election.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

140 thoughts on “Georgia On My Mind: The Biden Administration Doubles Down on New Challenge Despite Victory of Arizona In Voting Case”

  1. Interesting. JT praises Supreme Court rulings. Trump calls the Supreme Court “a disgrace” & “incompetent.”

    Turley deftly neglects to mention Arizona Republicans are leading efforts to audit Maricopa County ballots since they refuse to accept the certification of Biden’s victory in Arizona. Arizona Republicans censured Governor Ducey, Jeff Flake & Cindy McCain for the unforgivable crime of publicly acknowledging Biden won Arizona.

    JT also sidesteps Georgia Republicans censuring Raffensperger for certifying Biden’s victory in Georgia. The election laws Georgia Republicans recently implemented will invalidate provisional ballots despite being cast by legal voters. 11,120 legal voters in Georgia cast provisional ballots in the 2020 election. Georgia Republicans will now be able to toss out any future provisional ballots being cast by their state’s legal voters.

    Turley may well believe it is irrelevant Arizona & Georgia Republicans refuse to accept the results of several recounts which confirmed Biden won their states in free & fair elections. Thankfully JT welcomes posts on his website which present opinions from all points of view.

  2. If every aspect of this election process was on the up and up and there is nothing to hide, then an audit of the process should be welcome. The auditors might find a few irregularities and make recommendations and suggestions. One policy recommendation would be to ban tech billionaires from spending hundreds of millions of dollars funding their own people’s involvement in local and state election process. The auditors would recommend that only U.S. citizens who are alive and can prove their status may cast their ballots. They world recommend voter privacy and reduce the possibility of last minute intimidation or coercion of the voter and assure a strict chain of custody for absentee ballots.

    What’s good for the goose is good for the gander. What argument could be made against measures to assure a fair and transparent process? It is good for everyone.

  3. Voter laws apply top 100% of would be voters regardless of race or political party.That’s as fair and equal as is possible. The only people who have or pretend to have a problem are the ones who pander to those they treat as second-class citizens who are unable to comply because they are too stupid.

  4. And, let’s include in the 2020 election fraud, a bold attempt to steal the Mayorship of Hawthorne CA, with conspiratorial and finance help from MS-13. It’s blinding ignorance to down-define electoral fraud only as it pertains to the Presidency. Here we have a violent gang involved in a planned electoral takeover of a City. https://thehill.com/homenews/state-watch/526497-california-men-accused-of-voter-fraud-for-attempts-to-register-thousands

    Surely this exemplifies why due diligence must be exercised to protect voting from frauds and cons, and why it must be done proactively (to paraphrase Justice Alito in the AZ decision), not procrastinated until after a flawed election has taken place.

  5. I read portions of Justice Alito’s opinion on the AZ case, and I think he zeroed in on the major issue dividing Dems and Repubs: the private nature of the voter’s decisionmaking and voting. He gives as an example of polling-place voting — the design of a private booth or cubicle to remove the possibility of intimidation or pressure to vote a certain way. This is one part of a larger architecture outlawing “electioneering”.

    The overnight switch to mail-in voting did not allow the time to erect analogous restrictions on pressures applied to the mail-in voter. Or, as some claim, those restrictions were discounted as unnecessary by Democrat officials responsible for elections, thinking that GOTV and 1:1 “coaching” give Democrats an advantage — and they used the immediacy of the COVID adjustment as “cover” for obtaining these advantages.

    If the Ds and Rs could come together and candidly explore the issue of voting privacy as applied to absentee and mail-in, there might be some common ground. For instance, who can be trusted as collectors/couriers of ballots more than partisan activists to handle the goods with a disinterested neutrality? You might get begrudging acceptance that ballots only be collected and transported by couriers judged non-partisan by both sides.

  6. Commenters on this forum tell us that irregularities in an election just could not possibly have happened. Now we have become aware that in the Democratic primary for the mayor of New York City the original tally of the votes left out 130,000 ballots. Nothing to see here they say. Just move along move along. https://www.google.com/search?sxsrf=ALeKk02e5t3yT_mhlp6RPYGtfLX0YN4lKA:1625532111130&source=univ&tbm=isch&q=picture+of+man+counting+hanging+chads+in+florida&client=safari&sa=X&ved=2ahUKEwje0beAm83xAhW9nGoFHYM2CnIQjJkEegQIBBAC&biw=1261&bih=763

    1. No, that is the exact opposite of the truth. No ballots were left out. On the contrary, the first release of the unofficial results of in-person voting, excluding absentee ballots, was botched because 135,000 test ballots were accidentally added to the count.

      The Board of Elections had run a test of the tallying system before the election, and forgot to clear the fake ballots out before loading the real ballots for tallying.

      Many people noticed that the total number of votes had mysteriously increased and demanded to know why, and the error was discovered. The fake ballots were deleted and the count run again, and while the total number of votes dropped the result didn’t significantly change. Which makes sense, since test ballots would be expected to be roughly evenly distributed.

      1. “No, that is the exact opposite of the truth. No ballots were left out. ”

        There was a foul up in test ballots in NYC, but it was still a foul up creating doubt over the election process.

        One can search NY ballot problems and find loads of information demonstrating how insecure our election process is. Some snippets from a random cite from NBC news.

        Anyone who thinks this type of election process is secure needs to get remedial training in logic.

        1 in 5 mail ballots rejected in botched NYC primary.

        City election officials rejected 84,000 ballots — 21 percent of all those received by election officials.
        More than 403,000 ballots were returned to election officials, according to city data, but only about 319,000 absentee ballots were counted

    2. No one said there weren’t “irregularities”. What everyone, including Barr, acknowledged, is that there have always been irregularities, but they aren’t necessarily the result of fraud or fraudulent intent. Courts dismissing Trump’s election lawsuits acknowledged as much, and also the fact that there weren’t enough irregularities to prove that the results would have been different. That’s the key question: not whether there were errors, because there always are some, but whether they were the result of human error or intentional fraud, and even then, are there enough to have made a difference.

      1. Right, but don’t forget. Trump conspired with the Russians and stole the 2016 election. Don’t ever forget that.

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