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