Battles over state voting rules set to play out in the courts
Washington — The fight over voting rights playing out in state houses across the country will likely soon move to the federal courts, with Georgia's sweeping law changing its elections policies the first facing a swell of legal challenges that will test the motivations of state lawmakers acting after the bruising 2020 election.
The measure in Georgia, approved along party lines, was the first major voting law to move through state legislatures in the wake of the November election, which former President Donald Trump claimed without evidence was rife with voter fraud.
Like Georgia, which has now faced backlash for its new election rules, lawmakers in dozens of states have put forth their own proposed voting changes, with Texas, Arizona and Florida next in line to consider reforms to their election systems.
But these overhauls are likely to bring with them legal battles over voting rights, with Georgia's law already challenged in several disputes mounted by civil rights groups and voting organization in the state.
Resting at the heart of those challenges, legal experts told CBS News, will be Section 2 of the Voting Rights Act of 1965, which prohibits voting policies that discriminate on the basis of race.
"These can be litigated under Section 2 of the Voting Rights Act, which says in statute what the 15th Amendment says, you can't discriminate [based on race] and any action, whether it is directly discriminating or has the effect of making it harder for the racial minority to vote versus the racial majority, would be illegal," Atiba Ellis, a professor at Marquette University Law School, told CBS News. "From that context, if plaintiffs can demonstrate that these kinds of provisions around absentee voting, innovations from the pandemic like dropbox voting and all of these kinds of voter-friendly issues, if plaintiffs can show these things have a harsher impact on minority communities, than it's an easier case to win for those people of color."
For challenges to the measures to succeed under the Voting Rights Act, Ellis said groups bringing the cases have to show that their effects would be more detrimental to the voting opportunities for people of color.
"If the provisions can be seen as targeting, and what's more likely, impacting voters of color in this way, a court will be far more skeptical about them under the Voting Rights Act," he said. "The question that was at issue in the 1960s and has been ever since is, do the laws make minority voters worse off at the end of the day? If they do, Section 2 provides a remedy."
Lawmakers in Georgia argue the more stringent rules were needed to protect the integrity of the state's elections and prevent voter fraud. But voting rights groups and civil rights activists argue in their lawsuits that several of the law's measures disproportionately harm Black and Latino voters, such as an ID requirement for voting by mail, new rules for ballot drop boxes and a shortened time frame for requesting and returning mail ballots. But the measure also expands early voting, which supporters say disprove claims the law restricts voting access.
"Unable to stem the tide of these demographic changes or change the voting patterns of voters of color, these officials have resorted to attempting to suppress the vote of Black voters and other voters of color in order to maintain the tenuous hold that the Republican Party has in Georgia," a suit filed by the Georgia NAACP and voting rights organizations alleges. "In other words, these officials are using racial discrimination as a means of achieving a partisan end."
Michael Kang, a law professor at Northwestern Pritzker School of Law, said many portions of the election laws are likely to be upheld by the courts, as states have wide discretion over administration of their elections.
"Excluding VRA considerations, the state has the ability to offer the amount of early voting it thinks is appropriate and it can change the voting process to take into account its administrative concerns with a relatively free hand," he told CBS News.
But the most serious challenges raise claims under Section 2, though he noted the provision has traditionally been applied in vote dilution cases, such as those involving redistricting, rather than vote denial cases.
"Federal courts have only been looking at these in volumes since Section 5 was taken out of action," Kang said.
Section 5 of the Voting Rights Act required certain jurisdictions with a history of race-based voter discrimination, many in the South, to receive approval from the Justice Department before changing their voting policies. But in 2013, the Supreme Court ruled the formula to determine which places were covered by Section 5 was unconstitutional, effectively gutting that provision. Texas, Arizona and Georgia were among the states subject to preclearance from the federal government before changing their voting rules, but the Supreme Court's decision in the 2013 case, Shelby County v. Holder, freed them of that requirement.
While the House in the last Congress passed legislation that would restore the preclearance formula in the Voting Rights Act that determined the jurisdictions covered under Section 5, the bill hasn't been reintroduced this term, though there is an appetite among Democrats and President Biden for legislation.
"At the end of the day, the democracy belongs to all of us, and actions that suggest that barriers that we can reasonably see can harm some voters more than others shouldn't exist," Ellis said. "The Voting Rights Act gives some protection in that regard in terms of race, but it can give more, and it's up to Congress to authorize the formula for Section 5 preclearance in order to provide that greater level of protection."
Success for the groups challenging Georgia's law and potential fights over measures under consideration elsewhere could hinge on the result of a fight currently before the Supreme Court involving two Arizona elections rules.
Democrats argued the rules — one involving the return of absentee ballots and another out-of-precinct provisional ballots — violate Section 2 and fear a sweeping ruling from the Supreme Court, now with a 6-3 conservative majority, could dismantle the provision. While the high court appeared likely to allow Arizona's two rules to stand, the justices struggled to define a standard for determining when voting rules discriminate on the basis of race in violation of Section 2.
"I don't think there is any question whatever the law that comes out of Brnovich will be applied to these challenges," Kang said, referring to the Arizona case. "It's going to set the law here in some way, but whether it makes it harder for the plaintiffs to win or is going to move the law much is unclear."