WASHINGTON – Court challenges to Republican-led election restrictions in Georgia and elsewhere face an uncertain road in a legal system that has grown more conservative in recent years.
National legislation favored by Democrats could counteract some state restrictions, but that too is no sure thing in a closely divided Congress.
Groups opposed to Georgia's sweeping overhaul of election laws filed suit in federal court in Atlanta on Thursday, a few hours after Gov. Brian Kemp signed the new law. They say restrictions on voting in person or by mail, including a requirement to have voter identification to cast an absentee ballot, violate the constitutional rights of all Georgians and also disproportionately affect voters of color in violation of the seminal Voting Rights Act of 1965.
The Georgia law was enacted less than three months after the state elected two Democrats to the Senate, handing the party control of the chamber. In November, President Joe Biden became the first Democratic presidential candidate to carry the state since 1992.
It is one of a wave of GOP-backed election bills introduced in states around the country after former President Donald Trump stoked false claims that fraud led to his 2020 election defeat. Georgia became a focus of the election and its aftermath with two recounts and ongoing investigation into whether Trump and his allies acted illegally in their efforts to try to overturn the result.
Stacey Abrams, the 2018 Democratic nominee for governor in Georgia, wrote on Twitter that the new law signaled Republican “capitulation to lies over truth. To fear over fairness. To suppression over participation.”
Jason Snead, a conservative supporter of the law, called it “a pretty reasonable set of proposals” that will "continue the tradition of keeping it easy to vote and hard to cheat.”
Richard Hasen, an election law expert at the University of California at Irvine law school, said the outcome is hard to predict. “Many of the things that the bill does are in line with what other states already do, so the question is whether a contraction of voting rights for bad purposes is illegal, even if the contraction does not go as far as some other states (or that Georgia considered),” Hasen wrote in an email.
Courts have made it harder to prove intentional racial discrimination, and “a partisan intent, even if it overlaps with race, may well not be enough,” Hasen said.
State and federal courts, including judges appointed by Trump, widely rejected lawsuits brought by the former president and his supporters challenging the election results.
But Republican-led states have fared better in federal court over other election issues, most notably a ruling last year that forced Florida felons to pay off fines and fees before regaining their right to vote.
In that case, the 11th U.S. Circuit Court of Appeals divided on ideological lines, with five Trump appointees among the six conservatives in the majority. The Atlanta-based 11th Circuit includes Georgia, and the same court would handle any appeal of a trial court ruling.
The Supreme Court, with three Trump appointees in a 6-3 conservative majority, likely would have the final word on challenges to restrictions in Georgia and elsewhere.
The justices' pending decision in a voting rights case from Arizona involving ballot collection and votes cast in the wrong precincts — two areas also covered in the Georgia law — also could affect the outcome of the Georgia lawsuit, especially if the court waters down a surviving provision of the Voting Rights Act that prohibits discrimination on the basis of race.
“The fate of this lawsuit might really turn on what we learn this spring from the Supreme Court,” said Deborah Pearlstein, a constitutional law professor at Yeshiva University’s Cardozo law school in New York. A decision in the Arizona case is expected by late June.
The Supreme Court's last major decision on the voting rights law was in 2013, when the court effectively gutted a key provision that had forced states and local governments with a history of discrimination to get approval before enacting any election-related changes.
The cumulative effect of the 2013 decision and subsequent measures enacted by states "is to really empower states who are interested in limiting voting to do that with more of a hope that they will be able to survive legal challenges," Pearlstein said.
Congress could render the court fight virtually meaningless if it were to pass Democratic proposals that would, among other things, strike down hurdles to voting and revive the advance approval portion of the Voting Rights Act.
“The Constitution gives Congress broad powers to set the rules for conducting federal elections,” Hasen said, and constitutional amendments that extended the vote to Black Americans, women and 18-year-olds provide more authority for protecting voting rights.
Democrats would almost certainly have to change Senate rules to win approval for the legislation by virtue of the tie-breaking vote of Vice President Kamala Harris.
Court challenges would surely follow, Snead said, although he conceded that some provisions, including rescinding state voter ID requirements probably would survive.