Down but Not Out: Office That Defends Voting Rights Faces Major Test

The Justice Department’s Civil Rights Division faces an onslaught of voter-suppression efforts across the country. Experts worry it might not have all the tools to combat them. 

Voters pass through security at the State Farm Arena in Atlanta on Dec. 14, 2020 — the first day of early voting for Georgia’s U.S. Senate runoff elections. (Courthouse News photo/Kayla Goggin)

WASHINGTON (CN) — There are many lessons to be gleaned from the 2020 general election. Many Americans don’t quite trust the election process, for one, and acting on that distrust can lead to real-world chaos, for another. 

As state legislatures across the country now grapple with 250 bills pushing for harsher voting restrictions — more than seven times the number filed this time last year — Republicans say their objective is to root out fraud.

And while voter turnout reached historic heights in 2020, evidence of fraud has been minimal.

At the state level, officials worked diligently to expand voting access during the pandemic, usually at odds with the president’s rhetoric. Still there were challenges: Polling places across the South were hampered by bureaucratic mismanagement and voter intimidation. Drop boxes were scarce in some places, set on fire in others. Hundreds of absentee ballots were lost in the mail. 

The Justice Department has a section within the Civil Rights Division specifically designed to fight voter suppression. Its investigations typically lean on Section 2 of the 1965 Voting Rights Act — it outlaws election processes that discriminate against minorities — or on Section 5 — this requires states to get preclearance before implementing any changes to voting procedures. 

During the Trump administration, however, the division was all but ignored. Gilda Daniels, who served as deputy chief of the voting section during the Bush-Gore election in 2000, shared her observations in a phone interview

“They did not file one case under Section 2,” said Daniels, who is a law professor at the University of Baltimore and the author of “Uncounted: The Crisis of Voter Suppression in America.”

Essentially the Voting Rights Act went unenforced. 

“What it did do,” Daniels added, “was threaten jurisdictions with lawsuits if they didn’t purge their voter rolls.”

Typically, the department gets involved when someone brings files a complaint for them to investigate. Combined with four years of dormancy under Trump, however, right-wing litigation efforts have left the voting section defanged. In responding now to hundreds of attempts to suppress voters, the task before the office could be called Herculean. And it’s about to get harder. 

Poll workers demonstrate in-person voting setup at the Milwaukee Election Commission warehouse alongside MEC executive director Claire Woodall-Vogg, far left. (Courthouse News photo / Joe Kelly)

In the landmark 2013 case Shelby County v. Holder, the Supreme Court stripped the Justice Department of two sections of the 1965 Voting Rights Act: the aforementioned Section 5 focused on preclearance, and Section 4, which identified states with a history of racial discrimination — or a “coverage formula.”

Section 5 was “arguably the most effective remedy for civil rights violations that we’ve ever had in the United States,” Sean Morales-Doyle, deputy director of the Brennan Center’s Democracy Program, said in a phone call.  

“That was an incredibly effective means of making sure that, at least in places with a history of race discriminatory voting, it wouldn’t see new discriminatory policies,” he said. 

But the conservative majority found both statutes unconstitutional, with Chief Justice John Roberts writing that the “extraordinary conditions” that made the law necessary in 1965 no longer applied. 

While Section 5 is still technically in the books, Shelby County v. Holder rendered it “inoperable,” according to Morales-Doyle. Since the Supreme Court struck down both the coverage formula and the preclearance requirement, no state must deal with the Justice Department before enacting new policies — thus tilling the legal landscape for widespread voter suppression. 

The Justice Department could regain that power through the John Lewis Voting Rights Advancement Act, introduced alongside the For the People Act, which would restore both statutes and then some. 

Unless Congress passes the bill, Morales-Doyle said, “Section 5 is not a tool that the Department of Justice has at its disposal.” 

The department can still file cases under Section 2 — for now. But it isn’t as strong a statute as former. 

“Section 2 cases are more complex,” Bruce Adelson, a former senior trial attorney for the department, said in a phone call, “and they can take a long time to litigate.”  

Campaign activists are seen outside Brook Hollow Library in San Antonio on July 14, 2020, as voters cast ballots in Texas runoff elections. (Courthouse News photo/Daniel Conrad)

The statute doesn’t just apply to laws that aim to disenfranchise voters, but also those with disparate impact that result in that disenfranchisement. If a rule wanted to, say, limit early voting on Sundays, it could reduce Black Americans’ access to the polls because many of them vote communally after church. 

Arizona Republicans recently advanced two lawsuits to the Supreme Court that argue that this definition is too broad. The cases — Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee — challenge one policy requiring a ballot to be thrown out if it was cast in the wrong precinct, and another that prohibits ballot collection by third parties. 

The court must decide whether the policies actually do suppress votes, or if voters of color are just less likely to follow election rules — potentially prompting the justices to consider rewriting Section 2. 

“The Supreme Court is being asked to do further damage to the Voting Rights Act, which would make it even harder to push back against discriminatory policies,” Morales-Doyle said. While it’s unlikely that Section 2 will be scrapped completely, it could be limited in scope, making cases take even longer and harder to litigate. 

By June, the Justice Department could have even less material at its disposal to combat voter suppression than it does now. 

But the agency is not without power. Adelson argues that the department should be proactive. The Civil Rights Division should rally and “get a strategy ready,” he said. 

“The Department of Justice doesn’t have to wait until these proposals are enacted to start doing the work in-house,” he aded.  

Gilda Daniels believes that the department has the tools it needs to limit voter-suppression efforts, but Congress should pass H.R. 1 and H.R. 4 to grant reinforce their powers. “I see the role of the voting section as protecting democracy,” she said, so it’s crucial that they can do their jobs to prevent a real stolen election.

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