In 2013, Supreme Court Justice Ruth Bader Ginsburg predicted, with prescient clarity, what is happening right now in Georgia. Ginsburg knew then, when the Supreme Court threw out half of the landmark 1965 Voting Rights Act, that it would be open season for voter suppression in states previously covered under the act.
We never should have been here in the first place.
And here we are facing that reality with a sweeping and unquestionably restrictive new voting law passing on a party-line vote in Georgia late last week. It came mere months after President Joe Biden won Georgia’s electoral votes and after Democrats Jon Ossoff and Raphael Warnock won runoff elections for the U.S. Senate in Georgia.
Now two big lawsuits are being brought in Georgia, both to challenge that voting law. Both suits were filed in federal court (the first suit was filed by the New Georgia Project and other organizations, and the second suit was filed by the NAACP along with other organizations), and both allege that Georgia’s law violates the remaining portion of the Voting Rights Act, Section 2, which guards against voting laws that discriminate on account of race, color or membership in a language minority group. They also argue that the law amounts to unconstitutional discrimination.
To name just a few changes we will see under Georgia’s new law: Voters have less time to apply for and request vote-by-mail ballots; anyone who wants to request a vote-by-mail ballot will face new voter ID requirements; and the state and localities are now prohibited from sending vote-by-mail ballot applications unless they have been requested.
The law also limits the number of ballot drop boxes and requires that they be inside early voting sites and only accessible during certain days and times. Another highly publicized aspect of the new law bars people from being able to give food and water to voters within 150 feet of a polling place. The law does expand early voting on weekends, but an earlier version of the law would have restricted such voting.
Biden didn’t mince any words when he called Georgia’s new election law “sick,” “un-American” and “despicable.”
Finally, the law also empowers state officials to take over local election boards. Democrats fear that Republican state officials will use this as an opportunity to intervene in local election boards controlled by Democrats.
Biden didn’t mince any words when he called Georgia’s new election law “sick,” “un-American” and “despicable,” concluding that Georgia’s law amounted to “Jim Crow in the 21st Century.” Former Democratic gubernatorial candidate and current voting rights activist Stacey Abrams referred to the laws as “Jim Crow 2.0.”
Biden’s point, and the point of many critics of Georgia’s law, is that it was passed not just to maximize Republican voting power, but also to burden and compromise African American voting power. Jim Crow laws are state and local laws that disempowered, disenfranchised and segregated African Americans. Some of the laws that led to the disenfranchisement of countless African Americans were literacy tests and poll taxes. The law that finally helped wipe out these restrictive voting laws was a federal one: the Voting Rights Act of 1965. Yes, the same federal law the Supreme Court partially trashed in 2013.
This is the very reason so many people fought so hard for the Voting Rights Act in the first place.
But how can Georgia’s law be justified? The answer is the way these restrictive laws are always justified: on unfounded claims of voter fraud. (Quick spoiler alert: No widespread voter fraud was found in Georgia or elsewhere.)
If the only way you think you can win is to make it harder to vote, we have a problem. Since Democrats have been successful under Georgia’s current set of election laws, Republicans appear to believe that the way to ensure they can once again win political campaigns is to change the laws to be more restrictive.
The legal outcome of the two cases is still to be determined. But we never should have been here in the first place, and at least two things should have prevented this law from ever passing. First, Georgia’s lawmakers never should have passed this law. If politicians want to win elections, they should make the best policy arguments to the voters — not try to suppress votes to pick their voters. Second, we know that politicians will often try to maximize power, and this can trample on voters’ rights. This is the very reason so many people fought so hard for the Voting Rights Act in the first place; the act should have stood as a federal guardrail against these types of restrictions. There are two potential solutions before us. First, courts should put some teeth into what remains of the Voting Rights Act and prevent other states from following in Georgia’s footsteps. Second, Georgia’s new voting law provides all the evidence we need for new federal voting rights protections. There is currently pending legislation, passed by the House, that would do just that. It is time for the Senate to act. In the meantime, the best way to safeguard our democracy is to take part in it. Vote. Vote however you can, even if it means standing in a long line and bringing your own water.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
