“Be creative. Be relentless. Be unapologetic in your commitment to do whatever it takes to ensure that every American has their vote counted no matter how they look or where they live. No lawsuit is too trivial when it comes to the voting rights of citizens.”
Those are the words signed by over 40 members of the Congressional Black Caucus in their letter to U.S. Attorney General Merrick Garland in February. Soon after, election administrators from Houston’s Harris County, the third most populous county in the United States, echoed those words in their own letter to Garland: “No action is too small to preserve our democracy.”
It’s been three months since the first letter. The U.S. Department of Justice (DOJ), with Assistant Attorney General Kristen Clarke leading the Civil Rights Division, has filed only a small number of its own voting rights lawsuits, despite a wave of new voter suppression laws across the country.
“The core purpose of the Justice Department is to protect civil rights and civil liberties, and the fundamental element of that is the right to vote,” Garland recently told the New York Times. But is the DOJ living up to that promise?
The DOJ is an immense agency with the unique ability to enforce federal law.
When Garland was nominated to become the country’s chief lawyer, the nation was still reeling from the Jan. 6 attack on the U.S. Capitol, which had taken place the month before. Since then, the Jan. 6 investigation has remained a top priority for Garland. Another focus has been to restore the proper separation between the DOJ and White House, a distance which dangerously narrowed during the Trump years. Comparatively, the DOJ’s voting rights efforts have garnered far less media attention.
While the agency of 115,000 employees covers a range of subject matter areas and programs, the DOJ has played a pivotal role in protecting voting rights over the past few decades. The DOJ has the ability to enforce federal statutes; for voting rights, that includes the Civil Rights Acts, the Voting Rights Act of 1965 (VRA), the National Voter Registration Act (NVRA), the Help America Vote Act (HAVA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and more.
There is no doubt that the DOJ’s ability to protect voting rights has diminished in recent years. Most notably, the U.S. Supreme Court’s decision in Shelby County v. Holder (2013) ended a preclearance regime that required the DOJ to approve election law changes for certain localities. “While it was in place, the Justice Department blocked thousands of discriminatory voting changes that would have curtailed the voting rights of millions of citizens in jurisdictions large and small,” Garland wrote in an op-ed last year. This redistricting cycle is also the first one since 1960 to occur without preclearance requirements for certain maps.
“Without that authority, the Justice Department has been unable to stop discriminatory practices before they occur,” continued Garland, urging the passage of federal voting rights legislation. “Instead, the Justice Department has been left with costly, time-consuming tools that have many of the shortcomings that plagued federal law prior to 1965.”
Costly, time-consuming tools include litigation. Currently, the DOJ has only four active voting rights and redistricting lawsuits.
- In March, Georgia enacted a 93-page voter suppression law, Senate Bill 202, drawing massive public attention and anger. In total, there were nine lawsuits filed against S.B. 202, six of which were consolidated (meaning they involved basically the same defendants, facts and legal issues). One of the six consolidated cases includes a lawsuit filed by the DOJ in June 2021 alleging that S.B. 202 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 preapproval requirements by the court if the Georgia Legislature is found to have acted with intentional discrimination.
- After Texas Republicans passed their voter suppression law, Senate Bill 1, in September 2021, the DOJ filed its next voting rights lawsuit. The DOJ challenges two provisions, 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 Civil Rights Act. The DOJ’s case was once again consolidated with five other cases against S.B. 1.
Securing voting rights is not just about access to the ballot box, but also includes fair representation and the ability to elect candidates of choice. As we near the end of the decennial redistricting process, the DOJ has so far filed two lawsuits against new maps, both in the Lone Star State.
- In December 2021, the DOJ once again 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. Again, the DOJ case was consolidated with eight others.
- In March 2022, the DOJ filed a second redistricting lawsuit in Texas under Section 2 of the VRA. The location? Galveston County, Texas. The case argues that a commissioner court map was intentionally drawn to create four predominantly white districts, denying Black and Hispanic voters the ability to elect their candidate of choice in any district.
Aside from its small number of voting rights lawsuits, the DOJ has reached a few settlements or consent decrees — legal agreements that end a case by spelling out specific requirements going forward. For example, the DOJ filed a lawsuit against a county in upstate New York over its failure to process voter registration applications in a timely manner (in violation of the NVRA) and to verify provisional ballots (in violation of the HAVA). The result was a consent decree outlining how the county planned to comply with those statutes in future elections. Most recently, the DOJ settled with the state of Ohio to ensure overseas voters received absentee ballots for the primary election as mandated by the UOCAVA.
Since the beginning of 2021, the DOJ has submitted amicus briefs or statements of interest in several other cases, as well as issuing guidance on several topics. You can find an exhaustive list of the DOJ’s voting rights litigation from the past few decades here.
It’s also important to note that Jan. 6 indictments are crucial accountability steps around “Big Lie” election subversion, a phenomenon that is deeply intertwined with the fight for voting rights. The department has also prosecuted individuals who have targeted elections officials and created a task force to focus on the threats against election workers.
Is the DOJ doing enough to protect voting rights?
“We are scrutinizing new laws that seek to curb voter access, and where we see violations, we will not hesitate to act,” Garland said in an address in June 2021. Yet, the number of DOJ voting rights lawsuits pales in comparison to the volume of new voter suppression laws and unconstitutional maps.
While recognizing the department’s hampered ability to enforce a weakened VRA, it still begs the question: is the DOJ doing enough?
“I called on the DOJ to increase their efforts months ago – they have to do more,” Rep. Mondaire Jones (D-N.Y.), one of the lead signatories on the Congressional Black Caucus letter, told Democracy Docket. A spokesperson for the DOJ’s Civil Rights Division declined to comment.
“The justice department picks its cases carefully, and unlike outside civil rights groups that often file groundbreaking cases, the department is much more conservative,” wrote voting rights journalist Sam Levine. Bloomberg Law recently reported on the DOJ’s risk-averse approach, a culture that leaves the voting section “cautious, sometimes to the point of inaction.”
“As primaries start and we get closer to Election Day, [Republican state legislatures] are ramping up attacks to hang onto their power,” Jones emphasized. “And the Department of Justice has to use every tool they have to challenge these unlawful and unconstitutional laws.”