Nobody likes to be sued. It’s even worse when it’s the federal government coming after you. Yet that’s the situation Georgia finds itself in, now that the Justice Department has filed a lawsuit against the state. And for one of the worst charges imaginable: that its recently enacted election reform law discriminates against Black Georgia voters.
Yet state officials appear confident that they’ll prevail. And who can blame them? The complaint — filed by Assistant Attorney General Kristen Clarke — reads more like a press release from the Democratic National Committee than a serious lawsuit by an apolitical Justice Department.
Clarke claims the new law, SB 202, was “intended to deny or abridge the right of Black Georgians to vote.” Really? Let’s take a closer look.
Clarke points to how SB 202 requires voters to request an absentee ballot at least 11 days before Election Day, instead of the prior deadline of only four days. Only Black voters? No, all voters. Odd, then, to claim this discriminates against Black voters. Is Clarke implying that they’re less conscientious and responsible than white voters? We hope not.
Moreover, the lawsuit fails to mention that in July 2020, the U.S. Postal Service sent a letter to every state recommending “strongly” that states change their deadline for voters to request an absentee ballot. It said the optimal deadline should be at least 15 days before Election Day “to account for [USPS] delivery standards.” Georgia acted to protect its voters, not disenfranchise them.
Then there’s Georgia’s voter ID requirement. And yet the state’s requirement for in-person voting has been in place without any problems since 2008, after courts decided it did not discriminate under the Voting Rights Act. So how would extending the ID requirement to absentee ballots racially discriminate?
Do they think Black voters are less capable than white voters at obtaining a free ID — something that millions of Americans have already and use daily for many routine activities? Again, we hope not.
What is particularly bizarre about this claim is that Georgia’s voter ID requirement is similar to Alabama’s voter ID law, which was enacted in 2014 and applies to both in-person and absentee balloting.
Just last year, the 11th U.S. Circuit Court of Appeals threw out a lawsuit filed against Alabama that made the same arguments the Justice Department is now using against Georgia. The court concluded that the law did not violate the Voting Rights Act and that the voter ID requirement for absentee ballots constituted a “minimal burden” on voters.
Clarke also claims Georgia’s prohibition on providing food and water to people waiting in line to vote racially discriminates.
Every state bans electioneering nearby polling places and voters. Prohibiting the giving of money and gifts — including food and water, as SB 202 does — to prevent the unduly influence of voters waiting to cast ballots is a wise and reasonable policy. The Justice Department acknowledges that SB 202 allows poll workers to distribute water to voters waiting in line and that voters can bring their own snacks and water.
Such a prohibition is certainly not racially discriminatory since it affects all voters equally. The new Georgia ban on food and water is virtually identical to a New York election law that prohibits giving voters “any meat, drink, tobacco, refreshment or provision” unless it has “a retail value of less than one dollar.” Yet the Justice Department has not sued New York over this long-standing prohibition or claimed that it is racially discriminatory.
Georgia also allows government officials to send absentee ballot request forms to voters, but only after a voter or an authorized relative makes the request. Clarke claims this discriminates against Black voters by not allowing third parties to send unsolicited absentee ballot request forms to voters.
The Justice Department also claims it is discriminatory that Georgia has banned permanent absentee ballot lists. This means a voter must request an absentee ballot for each election. This is, in fact, an election best practice.
No reasonable person would think there is anything discriminatory about any of these provisions regarding absentee ballot requests, particularly given how notoriously inaccurate voter registrations lists are and how hard it is for states to keep them up to date and remove individuals who have died or moved away.
The allegations in this complaint lack any modicum of common sense. It is nothing less than a partisan lawsuit and an abuse of the Justice Department’s enforcement authority under the Voting Rights Act.
Every allegation in the lawsuit is based on the patronizing view that Black and other minority voters are somehow not as capable as other voters of dealing with election rules and procedures. That is obviously and clearly not true. The Justice Department should be ashamed and embarrassed by this lawsuit.
(Hans von Spakovsky is a senior legal fellow, and Zack Smith is a legal fellow, in The Heritage Foundation’s Meese Center for Legal and Judicial Studies.)
