In a statement released last August commemorating the 57th anniversary of the Voting Rights Act of 1965 (VRA), U.S. Attorney General Merrick Garland assured the American people that the U.S. Department of Justice (DOJ) “remains committed to relentlessly protecting voting rights with the enforcement powers” it has.
Garland qualified this commitment to effectuating the VRA by acknowledging that this seminal piece of federal voting rights legislation — and the enforcement powers it affords to the DOJ — has become considerably weaker against the backdrop of a drastic rise in voter suppression laws nationwide. In particular, Garland underscored how the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder — which effectively terminated a preclearance regime that required the DOJ to approve election law changes for covered jurisdictions with a history of voter suppression and racial discrimination — significantly hamstrung the DOJ’s ability to enforce the VRA’s protections.
Despite the Supreme Court’s hollowing out one of the VRA’s most important provisions, its decision in Shelby County did not render the DOJ impotent in its power to enforce federal voting rights legislation. There remain a plethora of key tools at the DOJ’s disposal that can be leveraged to protect and preserve voting rights. But when faced with a deluge of voter suppression laws and a conservative legal movement that is exceedingly hostile towards voting rights, is the DOJ taking enough action?
In an interview last weekend, Ron Klain — former White House Chief of Staff under President Joe Biden — seemed to answer that question and urged the DOJ to take more action in court to combat voter suppression and intimidation: “I think at a time when a lot of Americans, including me, would like the Justice Department to get more aggressive in court defending voting rights, defending reproductive rights — that more cautious, measured approach seems just not aggressive enough given the threats that our rights face…I think [the Justice Department] should look for opportunities to go to court.”
Since 2021, the DOJ has filed eight voting rights and redistricting lawsuits. Five of them are still active.
The DOJ’s Voting Section, a subsection of its Civil Rights Division that is composed of approximately 600 employees, plays a pivotal role in enforcing federal voting and civil rights statutes through litigation. The statutes under which the Voting Section brings lawsuits include the VRA, Civil Rights Acts, National Voter Registration Act (NVRA), Help America Vote Act (HAVA), Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and more.
Since 2021, the DOJ’s Voting Section has filed a total of eight voting rights and redistricting lawsuits, five of which are actively ongoing. The DOJ’s five ongoing lawsuits represent only 2.4% of the 210 active voting rights and redistricting cases that Democracy Docket is currently tracking. Although the DOJ has made significant strides since its abysmal performance on voting rights throughout former President Donald Trump’s administration, it remains relatively restrained in its efforts to enforce federal voting rights laws through litigation. “Don’t expect a quick change and a new flurry of cases,” wrote journalist Sam Levine for The Guardian at the onset of President Joe Biden’s administration. “The [J]ustice [D]epartment picks its cases carefully, and unlike outside civil rights groups that often file groundbreaking cases, the department is much more conservative,” Levine added.
Back in June 2021, Garland announced that the DOJ’s Civil Rights Division would “double the division’s enforcement staff for protecting the right to vote,” however this staffing increase has not yielded a concomitant uptick in litigation brought by the department. “DOJ is a conservative institution, and at times that could get really frustrating, but there’s also good reason for it,” Jon Greenbaum, a former trial attorney in the DOJ’s Voting Section and current chief counsel at the Lawyers’ Committee for Civil Rights Under Law, told CNN in November 2022.
“DOJ has an important role but a limited one,” Greenbaum further explained in a comment to Democracy Docket. “Its jurisdiction is limited to bringing federal statutory claims, so it cannot, for example, bring constitutional claims such as racial gerrymandering claims or fundamental right to vote claims.”
Despite a record number of voter suppression laws being enacted across 19 states in 2021 and Republican lawmakers’ unremitting continuation of these anti-voting efforts in the succeeding years, the DOJ only filed one lawsuit in 2022, and has yet to file any lawsuits in 2023.
The voting rights and redistricting lawsuits filed by the DOJ since 2021 include the following:
In June 2021, the DOJ filed a lawsuit challenging Georgia’s omnibus voter suppression law, Senate Bill 202, alleging that it was enacted with the intent “to deny or abridge the right of Black Georgians to vote on account of race or color” in violation of Section 2 of the VRA. While the decision in Shelby County gutted the DOJ preclearance requirements of the VRA, the DOJ seeks to invoke a less common “bail in provision” — Section 3(c) of the VRA — which would impose pre-approval requirements by the court if the Georgia Legislature is found to have acted with the intent to discriminate. This lawsuit was consolidated with five other lawsuits challenging S.B. 202.
In November 2021, the DOJ filed a lawsuit challenging Texas’ omnibus voter suppression law, Senate Bill 1. The DOJ challenges two provisions of S.B. 1, arguing that a new voter assistance requirement violates Section 208 of the VRA and that strict rules around the rejection of mail-in ballot applications and ballots violate the Materiality Provision of the Civil Rights Act. The DOJ’s case was once again consolidated with five other cases against S.B. 1.
In December 2021, the DOJ sued Texas, this time over the state’s newly adopted congressional and state House maps under Section 2 of the VRA. The complaint alleges that the maps ignore Texas’ growing minority populations and instead dilute the voting strength of voters of color. The DOJ case was ultimately consolidated with eight others challenging Texas’ new maps drawn with 2020 census data.
In March 2022, the DOJ filed a redistricting lawsuit in Galveston County, Texas under Section 2 of the VRA challenging how new districts for its Commissioners Court — Galveston’s county government — were drawn. The case argues that the Commissioner Court map was intentionally drawn to create four predominantly white districts, while eliminating the county’s singular majority-minority district, thereby denying Black and Hispanic voters the ability to elect their candidate of choice in any district. Prior to Shelby County, Galveston County was subjected to the DOJ’s preclearance regime; notably, the U.S. attorney general has twice objected to redistricting proposals in Galveston County, initially in 1992 and again in 2012.
In July 2022, the DOJ filed a lawsuit challenging an Arizona law that requires Arizonans using federal voter registration forms to provide documentary proof of their citizenship and requires election officials to refer a list of voters who do not provide satisfactory proof of citizenship to the Arizona attorney general for investigation. The DOJ argues that the challenged law violates the NVRA and the Materiality Provision of the Civil Rights Act. This lawsuit was consolidated with seven others challenging the law.
Aside from these five ongoing lawsuits, the DOJ resolved three lawsuits in 2021 through consent decrees, court-approved settlement agreements that end a case by spelling out specific requirements for the parties going forward. In April 2021, the DOJ reached an agreement with West Monroe, Louisiana that ended the at-large election method for the city council and replaced it with a “fairly-drawn three single-member district plan, drawn in accordance with the Voting Rights Act and the U.S. Constitution [that] would result in Black citizens of West Monroe having an opportunity to elect candidates of choice in at least one single-member district.” In two other cases out of New York and New Jersey, the DOJ entered into consent decrees to ensure these states’ compliance with federal laws, including the NVRA and HAVA.
Aside from bringing lawsuits, the DOJ has also filed numerous amicus briefs and statements of interest since 2021.
The DOJ plays an ancillary, but nevertheless valuable role in voting rights litigation by filing frequent statements of interest and amicus curiae (“friend of the court”) briefs primarily in federal voting rights and redistricting cases.
Since 2021, the DOJ’s Voting Section filed a total of 18 statements of interest in voting rights and redistricting lawsuits, according to its website. In these statements, the DOJ seeks to express its governmental interest in ensuring that courts uphold and properly interpret federal voting rights statutes. Although the DOJ has exhibited a low propensity for filing lawsuits, its performance in submitting frequent and numerous statements of interest since 2021 is more promising.
Amicus briefs serve as another important and frequently utilized vehicle through which the DOJ can participate in federal voting rights and redistricting litigation even if it is not a party to a particular lawsuit. In some instances, the DOJ may even ask a court for permission to participate in oral argument in its capacity as a friend of the court when the United States has a vested interest in upholding federal law. In 2022, the U.S. solicitor general participated in oral argument before the U.S. Supreme Court in two extraordinarily consequential, landmark voting cases, Allen v. Milligan and Moore v. Harper, that will decide the future application of Section 2 of the VRA and determine the fate of the radical independent state legislature theory, respectively.
The DOJ ramped up its enforcement activities surrounding the November 2022 midterm elections, but was it effective?
On the eve of the November 2022 midterm elections, the DOJ announced that it would monitor polls on Election Day in 64 jurisdictions across 24 states to ensure compliance with federal voting rights laws. This announcement came amidst heightened concerns surrounding intimidation at the polls towards voters and election workers alike. One of the DOJ’s monitored jurisdictions was Maricopa County, Arizona, where documented instances of armed, right-wing vigilantes intimidating voters at drop boxes spurred litigation ahead of Election Day. Although the DOJ did not bring its own legal action challenging this conduct in Maricopa County, it submitted a statement of interest in one of the two lawsuits seeking to block the vigilante activity. In its statement, the DOJ argued that it had a “significant governmental interest” in “protecting voters from unlawful intimidation, threats, and coercion” under Section 11(b) of the VRA, which protects against voter intimidation.
Greenbaum added extra context: “The Department also has a methodical process that does not make it well suited to bringing emergency cases such as going to court to remove somebody who is intimidating voters on the day of an election.”
Also ahead of the 2022 midterm elections, the DOJ provided an update on its task force to combat threats against election workers who are facing unprecedented levels of violence and harassment due to the reverberating effects of the “Big Lie.” Launched in July 2021, the task force was created to “receive and assess allegations and reports of threats against election workers” by partnering with “U.S. Attorneys’ Offices and FBI field offices throughout the country to investigate and prosecute these offenses where appropriate.” As of August 2022, the task force has investigated over 1,000 reports of “hostile or harassing activity,” but has only pursued five prosecutions. Additionally, the DOJ continues to bring criminal charges against and make arrests of individuals who participated in the harrowing Jan. 6, 2021 attack on the U.S. Capitol.
Pending lawsuits in Arkansas and Texas could take away the ability of private litigants to bring certain voting rights cases, putting the sole onus on the DOJ.
Over the past year, the conservative legal movement has honed in on a new target that directly implicates the DOJ in an effort to undercut the efficacy of indispensable voting and civil rights laws. This target, known as a private right of action, allows individuals or organizations to bring lawsuits under certain statutes. Without a private right of action, only the DOJ — as opposed to private litigants in conjunction with the DOJ — can file lawsuits under certain statutes, thus making them significantly less enforceable.
One lawsuit out of Arkansas involving a challenge to the state’s legislative districts that is currently on appeal in the 8th U.S. Circuit Court of Appeals could result in the evisceration of a private right of action under Section 2 of the VRA, which prohibits any voting law that results in a “denial or abridgement of the right…to vote on account of race or color.” The case wound up before the 8th Circuit after a Trump-appointed federal district court judge ruled that nobody except the U.S. attorney general can bring such a lawsuit, in an extreme departure from long-established legal precedent and legislative history.
Out of the 30 active redistricting lawsuits brought under Section 2 that Democracy Docket is currently tracking, only two were filed by the DOJ since 2021 (note, one DOJ redistricting case that was brought under Section 2 in 2021 has since been resolved). If the 8th Circuit were to affirm the district court’s decision invalidating a private right of action under Section 2, there would be immense pressure on the already resource-limited DOJ as the sole entity responsible for bringing Section 2 litigation in states that fall within the 8th Circuit’s jurisdiction.
The DOJ waded into the lawsuits that threaten to end the private right of action.
“Congress always intended for Section 2 to be privately enforceable,” stated Jonathan Backer, an attorney for the DOJ’s Voting Section who participated as a friend of the court at the January 2023 oral argument before the 8th Circuit in the Arkansas case. In addition to citing the legislative history of Section 2 in which Congress clearly contemplated a private right of action, Backer asserted that federal courts — including the U.S. Supreme Court — have heard dozens of Section 2 claims brought by private plaintiffs over the past few decades.
“Indeed, the private right of action inherent in Section 2 reflects the Department of Justice’s…limited resources and lack of capacity to vindicate the rights protected by the VRA without the participation of private litigants,” former U.S. attorneys for the DOJ’s Voting Section wrote in an amicus brief submitted to the 8th Circuit. “Private plaintiffs fill in the gaps left open in the wake of Shelby County by monitoring voting changes in their own communities…[Their] proximity to affected communities means they are often better situated to engage in the resource-intensive fact-finding process necessary to support a Section 2 claim…Accordingly, without a private right of action to raise Section 2 claims, most enforcement of the statute would grind to a halt,” they concluded.
Conservatives are simultaneously trying to undermine the private right of action under other crucial statutes. In a Texas lawsuit that is currently on appeal in the 5th U.S. Circuit Court of Appeals, conservative state and county officials argue that there is no private right of action under the Materiality Provision of the Civil Rights Act, which prevents voters from disenfranchisement on the basis of a trivial error that is immaterial to whether an individual is qualified to vote. The DOJ participated in oral argument, once again reaffirming the existence of a private right of action.
As countless voter suppression laws and illegal maps remain on the books and new, conservative legal attacks are mounting, is the DOJ taking sufficient action?
It remains to be seen how the cases out of Arkansas and Texas will be resolved. Nevertheless, the prospect of a voting rights and redistricting landscape in which only the DOJ — and no one else — can bring lawsuits under key federal voting statutes, raises cause for concern. Given the DOJ’s relatively limited activity in the sphere of bringing litigation, the cases threatening the private right of action should serve as a clarion call to the DOJ to take more legal action.
As civil rights activist Rev. Jesse Jackson aptly wrote in an op-ed early last year, the “forces of reaction are mobilized and relentless. Now those on the side of democracy — the White House, the Justice Department, the citizens whose right to vote is being challenged — must demonstrate that they are even more mobilized and even more relentless.”