Georgia Secretary of State Brad Raffensperger scored a victory over the Biden Justice Department when a federal judge ruled Tuesday that the law enforcement agency has to turn over secret communications with liberal interest groups targeting Georgia’s new election reform law.
In 2021, the Georgia Legislature passed and Gov. Brian Kemp, a Republican, signed into law SB 202, known as the Election Integrity Act, which expanded voter ID requirements to absentee ballots, established guidelines for ballot drop boxes, required that wait times at polling places be no longer than one hour per person, and gave the State Election Board more oversight over election administration in the counties.
In June 2021, the U.S. Justice Department announced a lawsuit to overturn parts of Georgia’s law, claiming it violated the 1965 Voting Rights Act.
President Joe Biden and other Democrats falsely labeled the law “Jim Crow 2.0,” a reference to the era of racist laws and segregation in southern states that suggested an official effort to prevent blacks from voting.
In response to the Justice Department’s lawsuit against Georgia, Raffensperger requested any communications that may have influenced its decision to challenge his state’s law. After the department refused to comply with a request under the Freedom of Information Act, Raffensperger’s office sued.
“These documents should show the coordinated effort between liberal activists and the United States Department of Justice to use Georgia’s election reforms as a scapegoat for political losses,” Raffensperger said in a written statement Tuesday after the ruling.
“Considering how blatantly political the Biden lawsuit against Georgia’s commonsense election law was from the beginning, it’s no surprise they would stonewall our request for basic transparency,” Raffensperger said. “I’m gratified that the court agreed that there should be no secrecy between the Biden Justice Department and liberal activists, and I will continue to fight for truth and integrity in Georgia’s elections.”
Voter turnout increased in Georgia during the 2022 midterm elections, the first major test of the 2021 law.
In a 32-page opinion, Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia denied the Justice Department’s motion to dismiss the case.
“DOJ’s failure to show that its litigation partners were sufficiently disinterested makes it difficult to see how the withheld communications fit within even an expansive reading of Exemption 5,” McFadden wrote in his opinion, later adding: “Because DOJ has not met its burden to show that the withheld emails fall within an exemption to FOIA, the court will grant Georgia summary judgment.”
The Justice Department claimed that Exemption 5 of the Freedom of Information Act exempts “intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” The DOJ claimed that staff from the liberal groups were “consultants” and the exchanges were “privileged.”
The state of Georgia countered that the Justice Department communications were not “interagency,” but with outside groups. McFadden agreed, noting that “the DOJ waived any privilege that could have attached vis-à-vis the other plaintiff groups.”
The federal judge also noted that the Justice Department provided about 600 pages of requested documents but withheld 112 pages.
McFadden’s opinion noted that about 60 private groups sued Georgia challenging SB 202, including the Georgia NAACP, VoteAmerica, and the Georgia Advancing Progress Political Action Committee. The groups filed separate suits in the U.S. Northern District of Georgia.
The Justice Department and the private plaintiffs “began collaborating in their litigation against SB 202,” McFadden said in his ruling on the election law.
“In July 2021,” McFadden wrote, “DOJ and plaintiffs’ counsel in seven of the eight cases exchanged an email stating that the parties ‘share a common interest in the successful prosecution of this litigation, and that they may share (but are not required to share) privileged communications and other litigation material between and among them without waiving attorney-client privilege, the work product protection or any other privilege or protection.'”
“On this record,” the federal judge added, “DOJ has not shown that the plaintiff groups acted as disinterested parties in their communications with it.”
A Justice Department spokesperson declined to comment on the matter late Wednesday.
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