How Trump’s New DOJ Could Shape the Future of Voting Rights
When Donald Trump launched his third presidential campaign in 2022, he promised to “immediately demand voter ID, same day voting, and only paper ballots” if elected. He went on to run a campaign motivated by the fallout of the Jan. 6, 2021 insurrection, with vows to wreak vengeance on political rivals and the very institution of voting.
Now, with his return to the White House, these changes could become a reality.
Much of the federal government’s involvement in elections, outside of formal legislation, runs through the Department of Justice (DOJ), which declined a request for comment. The DOJ is tasked with everything from stopping voter intimidation to helping voters with disabilities access the polls to disrupting foreign interference in elections. The work of the DOJ’s Civil Rights Division — which handles the majority of voting-related cases — ebbs and flows as administrations change, with the Voting Section typically growing smaller during Republican administrations when that area of law is not a top priority.
But, Trump’s singular focus on supposed election fraud is concentrating the far-right’s attention on voting laws and how the DOJ enforces them. Last week, Cleta Mitchell — a former Trump attorney who now runs an organization bent on purging voters — tweeted:
Trump is also poised to select a loyal attorney general after facing resistance from his previous attorneys general. In 2018, Jeff Sessions refused to end Special Counsel Robert Mueller’s investigation into Trump’s 2016 campaign, resulting in Sessions being fired. Likewise, in 2020, Bill Barr upheld the integrity of the presidential election despite enormous pressure from Trump to declare the results invalid.
Last week, the president-elect nominated Florida Rep. Matt Gaetz (R) for the position. Gaetz is a loyal attack dog with a history of defending Trump against Justice Department investigations. While Gaetz withdrew his nomination on Nov. 21, Trump is still expected to choose an attorney general who will bend the Justice Department to his will. Trump transition team spokesperson Karoline Leavitt said the president-elect “remains committed to choosing a leader for the Department of Justice who will strongly defend the Constitution and end the weaponization of our justice system.”
How will a Trump DOJ run by loyalists and possibly purged of career attorneys impact voting rights? Looking at its record during Trump’s first term could provide an indication of what’s to come.
Voter registration and voter roll maintenance
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During Trump’s first term, the department made it harder to register to vote and stay on the rolls in certain states. In 2017, the DOJ reversed its position on a restrictive Texas voter ID law that it previously said was racially discriminatory. It also sent letters to 44 states demanding information on voter roll maintenance procedures in a highly unusual move that experts worried was a prelude to voter purges, and switched sides to back Ohio’s efforts to purge thousands of infrequent voters. A day after the Supreme Court upheld Ohio’s voter purge policy, the department sued Kentucky to force it to systematically remove similar voters.
This time
The Justice Department is involved in two ongoing lawsuits challenging voter purge programs in Virginia and Alabama. The programs rely on out-of-date information to remove supposed noncitizens from the rolls, but have resulted in removing naturalized and U.S.-born citizens. Given the reversals during the last Trump administration, it’s likely that a DOJ led by right-wing loyalists could abandon its current position that the programs are illegal. The Alabama program was paused during the 2024 election while the U.S. Supreme Court allowed Virginia’s to go ahead.
Election administration
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In May 2020, with COVID-19 deaths nearing 100,000, the DOJ supported an onerous Alabama election law requiring absentee voters to submit a photocopy of their ID and sign the ballot envelope before a notary or two witnesses. Civil rights groups argued that these rules disadvantaged older voters, Black voters and voters with disabilities, who were most at risk of life-threatening complications from COVID-19.
This time
The DOJ is suing the state of Georgia to stop a new racially discriminatory voter suppression law. The law criminalizes line-warming, restricts ballot drop off locations, shortens the timeframe to request absentee ballots, and more. The department said the law was passed to suppress Black votes after record Black turnout elected two Democrats to the Senate and Joe Biden to the presidency in 2020. It has also weighed in on cases challenging superfluous requirements for absentee ballots and voter registration applications in Texas, Georgia and Florida. Given Trump’s promise to “secure elections” with restrictive rules that make it harder to vote, it appears unlikely that the next administration will continue to pursue these cases.
Project 2025, a roadmap written by Trump allies for his second term, proposes using the Justice Department to reject ballot curing and to investigate state election officials that allow it. While normal practice is to give voters every opportunity to cast a ballot, the plan points specifically to Pennsylvania and suggests that voters whose mail-in ballots are rejected should be required to vote in person rather than fix their mistake.
Election fraud
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Following the 2020 election, Attorney General Bill Barr uprooted a 40-year policy and authorized federal prosecutors to investigate election irregularities, giving credence to Trump’s lies and assuaging his supporters. The department typically does not launch investigations into election fraud before an election is certified. This policy change prompted Richard Pilger, head of the department’s Election Crimes Branch, to resign. Barr had also spurred election misinformation earlier in the year when he claimed that voting by mail was more susceptible to fraud and coercion.
However, Barr and other department leaders ultimately upheld the integrity of the 2020 election. Barr repeatedly told Trump and the public that there was no widespread election fraud, and resigned before he could be fired over his insistence. When Barr’s replacement refused to go along with the Big Lie, other top DOJ officials banded together and threatened to quit if the president went through with his plan to replace the acting attorney general with a loyalist who would use the DOJ to overturn the 2020 election results.
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While Trump will no longer be on the ballot, bogus election fraud claims will most likely persist, especially if Republicans lose in 2026 and 2028. Loyalty to MAGA rhetoric and ideals has emerged as a key qualification for Trump’s Cabinet nominees, and he is likely to pick an attorney general with a history of spreading false election narratives. Gaetz, for example, criticized the DOJ’s investigations into Trump and alleged the Jan. 6 insurrection was perpetrated by antifa.
Redistricting
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In 2019, the department reversed its position on efforts to require Texas to submit legislative and congressional maps for pre-approval to avoid racial discrimination. The U.S. Supreme Court in 2013 gutted Section 5 of the Voting Rights Act, which required states with a history of racial discrimination to gain federal approval before making changes to elections and maps. But, the Court indicated that federal oversight could return if there was future intentional discrimination. Under the Obama administration, the DOJ challenged discriminatory maps drawn in 2011 and fought to restore federal oversight over Texas’s redistricting process. The Trump administration decided to drop their opposition to the 2011 maps and any requirements for oversight.
Throughout the first Trump administration, the DOJ supported efforts to add a last-minute question about citizenship to the 2020 census. The question, which was ultimately left off, would have depressed responses in immigrant communities and manipulated congressional reapportionment. In 2020, the solicitor general argued two cases in front of the Supreme Court hoping to exclude undocumented immigrants from the census and end the census count early.
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The DOJ has weighed in on five redistricting battles that will decide the fate of maps in Alabama (legislature and congressional), Georgia, Louisiana and North Dakota. The department defended the constitutionality of Section 2 of the Voting Rights Act, which prohibits racial discrimination in redistricting and allows private parties to challenge maps they believe to be discriminatory.
Republicans have recently argued aggressively that private parties (such as voters) cannot file lawsuits against states alleging Section 2 violations. If courts agree, only the DOJ will be able to bring these cases, and even a DOJ led by a pro-voting attorney general would face resource constraints in litigating them all. The cases are currently in federal appellate courts across the country.
Voting rights may be at its most precarious position since the civil rights gains of the 1960s
Trump has made his disdain for fair play and an expanded franchise clear over the last 10 years. What’s more, his hand-picked attorneys general used the Justice Department’s considerable power to kick voters off the rolls, reduce vote by mail, inflame right-wing suspicions and manipulate congressional apportionment last time around. It is reasonable to expect no less with a loyalist attorney general.
But, not all is lost. Courts are playing a major role in protecting voters. Despite concerted Republican efforts to attack voter registration and election rules, pro-voting groups won nearly three times as many lawsuits during the 2023-2024 cycle. Additionally, Senate Democrats are racing to confirm President Biden’s judicial nominees, strengthening the bulwark against anti-voting efforts that may come from a Trump DOJ and beyond.
This story was updated Nov. 21 to reflect the withdrawal of Gaetz’s nomination.