Garland’s robust rhetoric was reassuring, to a degree. “So far this year, at least 14 states have passed new laws that make it harder to vote,” he said. “And some jurisdictions, based on disinformation, have utilized abnormal post-election audit methodologies that may put the integrity of the voting process at risk and undermine public confidence in our democracy.” He also recognized that longer lines at polling locations in poor and minority communities can serve as a barrier to voting.
Garland, apparently in reference to the bogus audit in Maricopa County, Ariz., also revealed: “The Civil Rights Division has already sent a letter expressing its concern that one of those audits may violate provisions of the Civil Rights Act that require election officials to safeguard federal election records. … The division also expressed concern that the audit may violate a provision of the Voting Rights Act that bars intimidation of voters.”
Letters of “concern” are helpful, but has the department demanded that the operation cease or even that Arizona officials answer questions? Without putting Republicans engaged in such activities on notice of potential liability, they have no reason to halt their attempts to undermine the 2020 election. (To the contrary, Republicans from other states have visited Arizona as if they are seeking tips for conducting partisan audits elsewhere.)
In addition to hiring more lawyers, Garland vowed, “We will use all existing provisions of the Voting Rights Act, the National Voter Registration Act, the Help America Vote Act and the Uniformed and Overseas Citizens Absentee Voting Act to ensure that we protect every qualified American seeking to participate in our democracy.” He added, “We are scrutinizing new laws that seek to curb voter access and where we see violations, we will not hesitate to act. We are also scrutinizing current laws and practices to determine whether they discriminate against black voters and other voters of color.”
Again, this language is reassuring, but expressing concern that “non-White voters must wait in line substantially longer than White voters to cast their ballots” is insufficient. It is well and good to “publish guidance” on post-election audits and early and mail-in-voting, but states that have passed restrictions on voting will be unimpressed.
The attorney general’s speech raises a number of questions:
- Beyond scrutinizing new anti-voting laws, is the Justice Department prepared to litigate to enjoin new voter suppression laws from going into effect and eventually to strike them down?
- Why has the department not joined private litigants who have filed suits in Iowa, Arkansas, Montana, Georgia, Florida and Kansas?
- Without the Voting Rights Act’s pre-clearance provisions, what specific legal tools and legal theories under existing law could prevent efforts to make voting less accessible for minorities?
- Is the Justice Department prepared to roll out a comprehensive monitoring process in 2021 and 2022 elections to deter and gather evidence of intimidation? Is it ready to rebut bogus claims of fraud?
- How will the Justice Department address MAGA groups that threaten to intimidate voters (couching their activities as benign “monitoring” or “observing”)?
- Has the Justice Department opened an investigation to determine if any federal voting laws were violated when the former president and Sen. Lindsey O. Graham (R-S.C.) made phone calls to Georgia voting officials to pressure them to overturn election results? If not, why not?
Moreover, we have yet to see evidence that the Justice Department is investigating those who financially supported, planned and incited the Jan. 6 insurrection. There may not be a bipartisan commission, but the department should be tasked with a comprehensive investigation that encompasses not simply the violent onslaught, but also the circumstances leading up to it and the players who enabled the insurrection. In short, will it determine if the speakers at the “Stop the Steal” rally broke federal laws?
It is true that the Justice Department does not normally announce or comment on investigations. But in the case of voting laws, the attempt to overthrow the election on Jan. 6 and efforts to strong-arm state and local officials who sought to overturn the vote, the public deserves confirmation that the department is investigating everyone involved in threats to democracy.
When Garland chose to uphold the Trump administration’s judgment by refusing to release an internal memo seeking to justify then-attorney general William P. Barr’s treatment of the Mueller report, he showed unnecessary and unwise deference to the former president and to the decisions of the department Trump corrupted. The same goes for Garland’s decision to maintain the previous administration’s view that the Justice Department should litigate on the former president’s behalf with regard to a defamation lawsuit brought against him by a sexual assault accuser. Garland’s stances raise legitimate concern that he does not recognize the need for a legal reset in the department.
To be blunt, the desire to appear nonpartisan should not prevent the Justice Department from holding the department and the prior administration accountable for its actions. By the same token, the department must demonstrate — not just promise — its desire to be aggressive, creative and uncompromising in attempting to strike down Jim Crow-style laws and end fraudulent audits. With or without new lawyers, the Justice Department needs to put Garland’s fine words into action. As Rep. Alexandria Ocasio-Cortez (D-N.Y.) put it on CNN on Sunday, “We aren’t seeing a transformational DOJ that I think people had been looking forward to.” The risk here is not that the department will do too much, but that it will not do enough to protect our democracy.