With the Midterm Elections only a few months away, the nation's attention is starting to focus on the Department of Justice (DOJ) and what role the DOJ might play in this election to help Democrats. Just over a year ago, Attorney General Merrick Garland announced his intention to double the number of lawyers working in the Voting Section of the DOJ's Civil Rights Division, which is charged with enforcing voting laws. With a couple of well-publicized exceptions (e.g., Georgia, Texas, and Arizona), so far the DOJ has been relatively quiet. Is this the calm before the storm?
Attorney General Garland claimed such an increase of attorneys in the Civil Rights Division was necessary to "protect the right to vote" in lieu of the Supreme Court's holding in Shelby County v. Holder, a 2013 case that struck down the preclearance requirement prescribed in Section 5 of the Voting Rights Act. Section 5's preclearance formula had not been updated in several decades and required primarily conservative jurisdictions to get preapproval from the DOJ before enacting new voting laws, even though these Republican-leaning jurisdictions had higher minority voter turnout than virtually every Democrat-leaning jurisdiction.
Attorney General Garland also cited “a wave of conservative voting bills” from States like Texas, Georgia, and Arizona that he alleged would suppress voters, particularly voters of color. But one year later, it's clear that he was wrong – Georgia recently had record-high early voting turnout with its new election laws, including three times as many black voters. Attorney Garland also announced that the DOJ, which includes the Federal Bureau of Investigation, would pursue criminal charges against those who violate federal laws “in spreading election disinformation in efforts to suppress the vote.”
In the same address, Attorney General Garland urged Congress to pass two voting bills that would ultimately die in the Senate (thankfully), namely H.R. 1 and H.R. 4. H.R. 1 would federalize elections and H.R. 4 would give the DOJ unprecedented powers to weaponize the DOJ and enforce federal election laws in the States. However, Attorney Garland warned that he would "not wait for that legislation to act."
You can listen to Attorney General Garland's address here.
On July 28 and September 21, 2021, the DOJ issued “guidance documents” intended “to ensure that states fully comply with federal laws regarding elections, specifically federal statutes affecting methods of voting and federal constraints related to post-election ‘audits.’” The documents:
- addressed voting by mail, absentee voting, and voting in person;
- provided information on the requirements federal law imposes on state and local governments and election officials to preserve and retain election records and the associated criminal penalties for failure to do so;
- addressed the intimidation of voters and the DOJ’s commitment to act against those breaking the law;
- discussed how the Department will review redistricting plans and methods of electing governmental bodies to ensure compliance with Section 2 of the Voting Rights Act; and
- described how the DOJ applies “well-established case law” while investigating and bringing enforcement actions under that Section.
While the guidance documents do not have the force of law and certainly do not impact state electoral statutes currently in place, they nevertheless aimed to tip the scales for Democrats. And the fact remains that the overstaffed DOJ has filed just two significant voting rights enforcement actions since AG Garland's pronouncements – one against Texas and one against Arizona. The DOJ's lawsuit in Arizona is challenging a law that would require voter ID and other widely popular safeguards to ensure only eligible electors vote. The DOJ's lawsuit in Texas also seeks to overturn Texas' recent, common-sense voting reforms that safeguard election integrity.
What should we expect from the DOJ in the coming months? Will the DOJ seek to further interfere with the states' attempts to run fair and free elections in an effort to tilt the scales in favor of the current Administration? They appear ready to do so.