As Republican-controlled state parliaments across the country curtail suffrage, the Biden Justice Department prepares to roll back – but its efforts, hampered by stalled federal suffrage laws, can only go so far.
In a speech on Friday, Attorney General Merrick Garland set out the DOJ's plan to protect voting rights and announced that the department's civil rights division would begin staffing to aid enforcement efforts.
According to Garland, the Civil Rights Division's Voting Division will double its legal staff "within the next thirty days," and the DOJ will renew efforts to revise existing laws such as the Voting Rights Act of 1965, the National Voter Registration Act, and Help America Vote Act "To ensure that we protect every qualified American who wants to participate in our democracy".
"There are a lot of things that are up for debate in America," Garland said on Friday. “But the right to vote for all eligible voters is not one of them. The right to vote is the cornerstone of our democracy, from which all other rights ultimately grow. "
Attorney General Merrick Garland: "There are many things in America to be debated. But the right to vote for all eligible citizens is not one of them. The right to vote is the cornerstone of our democracy, the right that everyone else starts from." Rights ultimately flow. "Pic.twitter.com/CweEfo3bVX
– CBS News (@CBSNews) June 11, 2021
However, the ministry has a lot to do to protect this right: This year, according to the Brennan Center for Justice, at least 14 states, including swing states such as Arizona, Florida and Georgia, have imposed new voting restrictions that pursued voting rights issues.
And last weekend, the Texas Democrats narrowly (and possibly only temporarily) blocked an additional measure in the Lone Star State that, among other things, would have shortened early election times and restricted mail-in voting in the state by leaving the Texas Capitol, the State House to refuse a necessary quorum.
Garland said Friday that these new laws would be scrutinized as part of the DOJ's voting offensive, as would state-level electoral scrutiny such as those currently being conducted in Arizona.
In addition, according to Garland, the DOJ will take steps to combat disinformation in elections and publish new guidelines on early voting, mail-in voting and the upcoming redistribution process.
"Where we see violations, we will not hesitate to act," said Garland.
The DOJ no longer has as many instruments to protect voting rights as it used to do
Although Garland went to great lengths to combat voter suppression and protect voting rights, Garland also spoke out frankly on Friday about the DOJ's restrictions following the 2013 Supreme Court ruling in the Shelby County v Holder case, which was a substantial part of the Voting Rights Act.
Following the judgment of the Shelby Court, the pre-trial formula used in the law – which defined which states and locations were subject to pre-screening or approval by the Department of Justice before their electoral laws were changed – was obsolete and unconstitutional.
The result, as Jenée Desmond-Harris explained for Vox in 2016, is that “until Congress passes legislation with a new Section 4 pre-screening formula – which is unlikely to happen anytime soon – jurisdictions covered by the previous formula ". are free to make changes to the election without having to obtain the approval of the federal government. "
Prior to Shelby, nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia – were subject to federal pre-approval, as were some areas in California, Florida, Michigan, New York, North Carolina, and South Dakota.
The pre-Shelby coverage formula that imposed preclearance requirements on these states required that each state or "political division" within a state maintain "a" test or device "that restricted the ability to register and vote" and less than 50 percent of the voting age population registered either to vote in the 1964 presidential election or to vote in the 1964 presidential election would be subject to prior federal approval.
However, while the formula was updated over the years – for example, the Supreme Court's rejected iteration relied instead on voter turnout and voter registration from 1972 – the court ruled that:
(A) The “current burdens” of the law must be justified by “current needs” and any “different geographic coverage” must be “sufficiently related to the problem it addresses”. The coverage formula passed this test in 1965, but no longer does it. Today's coverage is based on decades of data and eradicated practices. The formula captures states by referring to literacy tests and low voter registration and turnout in the 1960s and early 1970s. … In 1965, states could be divided into two groups: those with a recent history of election testing and low voter registration and turnout, and those without these characteristics. Congress based its cover formula on this distinction. Today the nation is no longer divided in that direction, but the Voting Rights Act continues to treat it as if it were.
However, roughly eight years after the Supreme Court ruling, Congress has still not come up with a new pre-screening formula, and is unlikely to do so any time soon, as a Senate voting law renewal would require 60 votes on current rules and despite little Republican ones Support for such a law, the Democratic Sens. Joe Manchin and Kyrsten Sinema continue to work hard against the abolition of filibusters.
In the meantime, however, a number of new electoral restrictions were in place in states previously under scrutiny – restrictions that may not have become law were still in place. Like P.R. Lockhart 2019 for Vox reported:
According to the Brennan Center for Justice, a policy and research group that oversees new voting restrictions, hundreds of "tough measures that make voting difficult" have been introduced in state legislatures since 2010. Many of these were introduced after the 2013 Shelby ruling, and, as a federal commission found last year, have been seen in both states that were previously screened and states that weren't.
These restrictions have taken many forms, including stringent photo ID requirements, restrictions on who can provide assistance at polling stations, restricting early polling days, and closing hundreds of polling stations in the United States. Other measures, such as removing voters from state electoral rolls and confiscating electoral districts to limit the power of colored voters, have affected the power of colored communities in elections.
Similar measures have accumulated since then, particularly in the wake of the 2020 election defeat of former President Donald Trump and the widespread adoption of the GOP on unfounded “electoral fraud” rhetoric. As Garland pointed out on Friday, this is at least partly due to Shelby, who ended the preliminary investigation without further action by Congress.
So my big takeaway from AG Garland's speech on voting rights is that he might as well have said, "I'm going to use every single one of the totally inadequate tools I now have to protect democracy, FU SCOTUS."
– Ian Millhiser (@imillhiser) June 11, 2021
"Although we won't wait for this legislation to take effect, we need to keep our eyes clear," Garland said on Friday. “The Shelby County's decision eliminated key voting rights protection tools. And as the President said, we need Congress to pass page 1 and the John Lewis Voting Rights Act, which would provide the department with the tools it needs. "
The GOP doesn't just want to make voting more difficult – it wants to make it easier to turn down elections when they lose
While the damage Shelby did and the effective end of the preclearance are not new, Garland's speech on Friday underscores why the US is looking increasingly bleak despite the prospect of increased enforcement of state electoral protection by the DOJ.
In particular, as Vox's Ian Millhiser explained earlier this month, the current GOP offensive against the suffrage, animated by the Big Lie, which has increasingly become an article of faith for the Republican Party, is all the more worrying because it is on multiple fronts is pushed, some much harder to overcome than others.
In addition to direct efforts to make voting more difficult – restrictions on early voting, voter identification laws, and the like, none of which is new to the GOP – several Republican-controlled state legislative efforts have made it easier for the GOP to make elections based on fabricated allegations of electoral fraud.
According to Millhiser,
Not every provision of the recent voter suppression bill can be overcome by vigilant voters or wise campaigning.
Georgia's new law, for example, allows state-level Republican officials to take over local electoral bodies in democratic strongholds like Atlanta. This is important because these local bodies can potentially shut down polling stations, disqualify voters, or even refuse to confirm an election result. Voters who do everything right can still have their ballots disqualified.
Furthermore, Georgia is not the only one trying to transfer power to the Republicans in the elections. In Arizona, Republican lawmakers are pushing for action to remove Democratic Secretary of State Katie Hobbs from her power to defend election lawsuits.
The move, proposed by a committee late last month, would instead transfer that power to a Republican – and as Aaron Blake of the Washington Post points out, it appears to be specifically targeted at Hobbs and would expire when her term ends.
That particular proposal has not yet been passed, and it is unclear whether it will – but the Arizona Republicans, who are currently overseeing a “review” of the 2020 election results in Maricopa County, have been at the forefront of the GOP war against minor d Democracy with measures like the one against Hobbs.
As political scientist David Faris told Vox's Sean Illing in May, the new GOP strategy depends on “finding a way to overturn an election with the appearance of legality” – and Faris says 2020 is just a “test run ".
"You have to give Trump and the Republicans a dark credit that they found out that this is really imaginable," Faris told Vox. “I think they now know that even if it would spark a legal battle and possibly civil war, if they can't win by suppressing the vote and the election is close enough, they can do so if they have enough state parliaments control. "and the Congress."
"Sleepwalking Towards Democratic Collapse"
However, as Garland said in his speech on Friday, there are bills that could potentially stem the tide of GOP-led voter repression and electoral subversion measures. In particular, two Democratic proposals – the For the People Act and the John Lewis Voting Rights Act – would both take steps to revitalize and expand federal voting rights.
Equal. But I don't think Garland is to blame for the fact that his office is not the one best placed to defend the right to vote. Article II is not the power here.
Article I (Congress) and Article III (the judiciary) are intended to do this work. https://t.co/pnHMPjFnCw
– Elie Mystal (@ElieNYC) June 11, 2021
The first of the two, the For the People Act, if passed, would represent a major change in federal electoral protection.
According to Vox's Andrew Prokop, the bill would “require automatic voter registration, same-day registration, and at least two weeks early voting” in all federal elections, and “restore the right to vote for all criminals who met their conditions, allowing registered voters without detention ID cards, put an affidavit in writing instead, and try to limit electoral roll-offs, ”along with a number of other changes.
It would also set up bipartisan redistribution commissions to end the partisan gerrymandering, create new anti-corruption measures, and much more.
It's likely dead in the water, however, after Manchin spoke out against it in a comment last week, even if you leave aside the fact that it lacks Republican support and hence the 60-vote threshold imposed by the filibuster (the, again , Manchin supports).
That leaves the John Lewis Voting Rights Act, which would give back to the DOJ what Garland called his "most powerful tool to protect voting rights in the last half century" – preclearance.
AG Merrick Garland closes his speech on the right to vote with a quote from the late John Lewis: "Democracy is not a state. It is an act. And every generation contributes a lot." pic.twitter.com/gCMpLhTltk
– Aaron Rupar (@atrupar) June 11, 2021
According to Ed Kilgore of New York Magazine, Manchin has even proposed a version of the bill that goes further than the formula put down by the Supreme Court in 2013 and would extend the preliminary investigation to all 50 states, although that would have no impact on electoral laws like the one already in the books in Georgia.
IMO, the Democrats' first priority now should be to convince Manchin that the John Lewis Voting Rights Act should also contain strict bipartisan redistribution rules
– Zack Beauchamp (@zackbeauchamp) June 7, 2021
Still, a renewal of voting rights like the For the People Act would be subject to the filibuster, which doesn't make it much better from the Senate's point of view. With Manchin on record as a supporter and with at least one Republican supporter in Alaska, Senator Lisa Murkowski, it's a slightly happier picture – but if Manchin and Sinema don't give in on the filibuster, and they don't seem so inclined, it won't Role-play.
As a result, even as the DOJ prepares to step up its voting protection efforts, it is somewhat unclear what comes next in the battle for voting rights. As Washington Post columnist and former FiveThirtyEight election reporter Perry Bacon Jr. wrote last month, "America is still going in a terrible direction – and at a much faster pace than I expected when Biden took over."
"Moderate Democrats and anti-Trump Republicans either don't know how bad the situation is or they don't care," argues Bacon. “I hope I'm too concerned about all of this. But I don't think it's me. Maybe democracy dies faster in the dark. But it could also slowly die in the light as we all watched but did not do enough to save it. "