DANIEL VAUGHAN: After Brnovich, Biden’s lawsuit against Georgia is likely doomed

On Thursday, the Supreme Court released its final two opinions for the term. One of them was in the much-anticipated case of Brnovich v. Democratic National Committee. 

In its ruling, Supreme Court upheld Arizona’s bans on ballot harvesting and counting ballots cast in the wrong precinct. The case was noteworthy both for being a 6–3 decision along partisan lines that upheld the power of states to determine their elections, and for showing that the Biden administration’s attacks on Georgia’s voting laws will more than likely fall flat.

To understand that second point, we need to explore the Arizona case first and why it allows us to forecast what’s to come with the Georgia lawsuit.

The Arizona law at issue was broad, and as the SCOTUS noted, the case concerned “two features of Arizona voting law, which generally makes it quite easy for residents to vote.” Along with a slate of provisions that make it easier to vote, the law also bans ballot harvesting by third-party groups and requires people to cast these early ballots in their own precincts.

Democrats challenged this, claiming that the law violated Section 2 of the Voting Rights Act.

The irony is that aside from partisan Democrats, no one else involved in the litigation believes Arizona’s laws violate the Voting Rights Amendment. That includes the Biden White House and the Department of Justice.

In February of 2021, the newly installed Biden-run Justice Department sent a letter to the Supreme Court regarding the Brnovich case. It said:

[The Biden administration] does not disagree with the conclusion in [the Trump administration] brief that neither Arizona measure violates Section 2’s results test.

The fear from the Biden administration was that the Supreme Court would adopt a new legal framework to interpret the Voting Rights Act. The Supreme Court acknowledged this, and said, “[N]o fewer than 10 tests have been proposed. But as this is our first foray into the area, we think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases.”

So that’s the grandest irony of all: the Biden administration, which is claiming many things about voter suppression and violations of the Voting Rights Act, didn’t believe the Arizona law in question — a basic, vanilla, GOP-backed voting measure — violated any federal statute.

More litigation will come on the Voting Rights Act and how the Supreme Court will interpret Section 2. That topic is interesting for another day. The Supreme Court announced some basic guidelines for now, and will come back at a later date. Given that Democrats are most prone to suing over these laws, no one doubts for a second we will return to this issue.

And that’s where it gets interesting for the Biden administration. Neither Arizona Democrats nor the Biden administration could prove the Arizona law at issue was discriminatory. The Biden administration wasn’t even interested in fighting that battle. But the irony is that the argument for striking down the Arizona law, though weak, is far more potent than any attacks on a similar law in Georgia.

During the legislative debates around the Arizona law, some state legislators made speeches that displayed a racial animus. The Supreme Court noted this in the evidence and history presented before them. The problem was this: No one could show that the law accomplished any racially motivated goal or negatively impacted any minority group in Arizona.

The Georgia lawsuit, launched by Merrick Garland and the Biden Department of Justice, is remarkably similar to the Arizona law. Like the Arizona law, the Georgia law makes it easier to vote while building safeguards around those voting measures. The DOJ lists off issues like out-of-precinct voting bans on third parties interfering with voting lines, and more, all of which are common throughout the United States.

And the complaint the DOJ filed does the same thing as the Arizona Democratic Party’s argument before the Supreme Court: It offers a lot of history around voter suppression issues in the United States, with little evidence or data that new laws cause such activities. 

The Supreme Court is only offering guidelines on interpreting Section 2 of the Voting Rights Act right now. Still, even without a framework, the Georgia lawsuit would be dead-on-arrival under the exact parameters of the Arizona law. The DOJ doesn’t have the evidence or data going for them. They’ve already admitted in the Arizona case that states have powers to dictate things in this area.

Everyone involved knows this, too, which makes the Georgia lawsuit nothing more than a partisan sham. The Biden administration is politicizing the use of the Department of Justice. This is a sham lawsuit with no basis in law or reality.

Fortunately, the legal system will see through all of this nonsense. But it is unfortunate the DOJ is getting used, again, in a way to perpetuate politics, and not simply administering the law.

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