by Mitch Kokai
Senior Political Analyst, John Locke Foundation
On Friday, the Biden administration filed suit against Georgia, challenging numerous aspects of the state’s Election Integrity Act of 2021. While many of the allegations contained in the nearly 50-page complaint struck a surreal chord, assessing the merits (or lack thereof) of the lawsuit requires an understanding of the Voting Rights Act. …
… As originally drafted, then, the Voting Rights Act only prohibited intentional discrimination. However, following the Supreme Court’s decision in City of Mobile v. Bolden, wherein the high court held that Section 2 only bars “the purposefully discriminatory denial or abridgment by the government of the freedom to vote” on account of race or color, Congress amended the language of Section 2 to prohibit practices that “result” in the “denial or abridgment” of the right to vote.
To prevail on a Section 2 claim, then, the Department of Justice need not establish a state such as Georgia intended to deny or abridge the right to vote based on race or color. Rather, Section 2(b) provides that a violation “is established if, based on the totality of circumstances, it is shown that the political processes . . . are not equally open to participation” because members of a particular race or color “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Based on this statutory language, courts have developed a two-step analysis to determine if a practice violates Section 2. First, courts ask whether the practice provides members of a particular race or color “less opportunity” than others “to participate in the political process and to elect representatives of their choice.” Second, the burden must be “caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination.”