~ Herring pushes back against efforts to dismiss DOJ’s lawsuit against Georgia’s law; calls for lawsuit to move forward ~

RICHMOND (August 16, 2021) – Attorney General Mark R. Herring has filed an amicus brief opposing Georgia’s discriminatory law that would make it more difficult for millions of Georgians – especially Black Georgians – to vote. Attorney General Herring has joined a coalition of 22 attorneys general in filing this amicus brief and pushing back against misguided efforts to dismiss the suite against Georgia at this threshold stage.

In their amicus brief filed in United States v. Georgia, Attorney General Herring and his colleagues explain why the U.S. Justice Department (DOJ) sufficiently stated a claim that Georgia intentionally discriminated against Black and minority voters and that the case should proceed to trial. Attorney General Herring and his colleague also suggest in the brief that Georgia’s purported reason for adopting the law – to prevent voter fraud – does not hold up under scrutiny and is really about hobbling the voting power of Black Georgians. 

“We are seeing a disturbing trend throughout the country of states passing incredibly restrictive voting laws that are aimed at making it harder for many Americans, especially Black Americans and Americans of color, to make their voices heard,” said Attorney General Herring. “I’m proud that this year we passed Virginia’s historic Voting Rights Act that protects Virginians fundamental right to vote and prevents any kind of discriminatory conduct, but it’s alarming to see other states moving in the opposite direction. I remain committed to doing all I can to ensure that every eligible American who wants to vote is able to do so safely and easily.”

According to a July 2021 report from the Brennan Center for Justice, during the 2021 legislative sessions, more than 400 bills with provisions that restrict voting access were introduced in 49 states. More dangerously, the report also points out that at least 18 states passed and enacted 30 restrictive laws making vote-by-mail and early voting more difficult, putting in place harsher voter ID requirements, and making voter purges more likely, among other restrictive actions.

The coalition of attorneys general are specifically urging the U.S. District Court for the Northern District of Georgia to allow the case to move forward because:

• The federal government’s complaint properly alleges that Georgia intended to discriminate against Black and minority voters. The Supreme Court has long held that to prove discrimination, a plaintiff does not need to show direct evidence of discriminatory intent. Rather, bedrock civil rights law makes clear that parties can prove intentional discrimination by pointing to circumstantial facts and context that suggest an impermissible motive – including the political incentives and wider racial dynamics underlying an enactment. At this early stage in the case, plausible allegations of intent are enough to warrant the case moving forward. Given the overwhelming evidence demonstrating that Georgia enacted these laws in response to the results of the 2020 election – where record Black turnout unseated two Senate Republicans and delivered Georgia to a Democratic President for the first time in nearly 20 years – the DOJ has clearly met the necessary evidentiary burden for this case to proceed.
• Georgia’s supposed reason for passing the law does not hold up under scrutiny. While Georgia has the authority and discretion to enact some laws that improve “election security” and “voter confidence,” states cannot invoke those interests as pretext for impairing the opportunities of vulnerable voters. Other states have been able to achieve those exact same goals through policy decisions that expand voter access, while keeping the risk of voter fraud minimal. For example, the District of Columbia and other states like California, Nevada, and Vermont have enacted reforms that simultaneously expand access and promote election security. When a state suddenly claws back existing access for voters – particularly voters of color after an historic election – without any genuine need or evidentiary basis, courts should be skeptical that “election integrity” is the genuine reason for the reduction in voting opportunities.

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia.

Attorney General Herring’s Work Protecting Virginians’ Voting Rights 

Protecting Virginians’ voting rights has been a top priority for Attorney General Herring during his time in office. During the COVID pandemic, Attorney General Herring has worked hard to ensure that all Virginians could vote safely and easily, regardless of how they chose to vote, and protect voters from illegal harassment or intimidation at the polls.

Because of all the work that Attorney General Herring and his team did in preparation for Election Day 2020, including making it clear that absolutely no voter intimidation would be tolerated in Virginia and preparing and planning for any and all outcomes or potential legal challenges, the Commonwealth saw a remarkably smooth and uneventful Election day. In addition to the OAG attorneys who normally represent the Board of Elections and the Department of Elections, Attorney General Herring assembled a multidisciplinary team of attorneys from his Civil Litigation and Public Safety Divisions, Solicitor General’s Office, and other divisions across the OAG, who were on standby, ready to jump into action at a moment’s notice should the need have arisen. The OAG also had lawyers in every corner of the Commonwealth who were prepared to go into court to handle any potential legal challenges.

Virginia also saw historic turnout during last year’s election, especially in early and absentee voting. This increase in voter participation was really possible in part because of Attorney General Herring's work to make voting as easy and safe as possible during this unprecedented election cycle by crafting agreements to waive the witness signature on absentee ballots, making it easier for disabled Virginians to vote safely at home, extending the voter registration deadline, and blocking the drastic operational changes at the USPS.

Last year’s election cycle brought numerous challenges that prompted Attorney General Herring and his team to develop solutions and put out guidance to make sure every Virginian had a safe, comfortable, easy voting experience, whether they chose to vote early absentee, early in person, or on Election Day.

Attorney General Herring and his team negotiated options to promote safe, secure voting for Virginians who could not or did not want to risk their health to vote in person including:

• An agreement that waived the witness requirement for absentee ballots for Virginians who feared for their safety voting in person
• An agreement that made it easier for Virginians with disabilities to participate in the election safely at home

Attorney General Herring also successfully blocked the Trump Administration's drastic operational changes to the U.S. Postal Service, when a federal judge granted his motion for preliminary injunction, explicitly saying in his order that, “at the heart of DeJoy’s and the Postal Service’s actions is voter disenfranchisement.”

Additionally, Attorney General Herring put a lot of emphasis on ensuring that Virginians felt comfortable and protected at polling places across the Commonwealth by:

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