Now all the Justice Department has to enforce fundamental voting rights is the prohibition on discriminatory practices found in Section 2 of the law — and a skeletal version at that thanks to the Supreme Court’s evisceration of that portion of the law in Brnovich v. Democratic National Committee.
So how does the Justice Department intend to fight the Texas law? First, it cited Section 10101 of the 1964 Civil Rights Act, a less frequently used tool in voting cases, to challenge a provision in the Texas’s statute that would disenfranchise voters for minor clerical errors in their absentee ballot applications. This portion of the law prohibits officials from denying “the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
Second, the Justice Department cites Section 208 of the Voting Rights Act to challenge new barriers that Texas imposes on voting officials who attempt to provide assistance to voters. Under this provision, any voter with a disability “may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of the employer or officer or agent of the voter’s union.” But the Texas law limits that assistance. As CNN reported, under the Texas law, “those who assist people with disabilities — other than those voters’ caregivers — will be required to fill out a document showing their name, address and relationship to the person they helped cast a ballot. Assistants would also have to take an oath pledging to obey certain limits to their assistance, promising only to help with ‘reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.’ ”
Even more interesting, the Justice Department filed a “notice of interest” in a private lawsuit brought against Texas under the broader provisions of Section 2. This is important because Justice Neil M. Gorsuch, in a remarkable act of legal overreach, suggested in his opinion for Brnovich that private litigants cannot bring lawsuits to enforce Section 2, even as the justice acknowledged the issue was not before the court and was not necessary to its ruling.
Gorsuch’s argument — aside from being an injudicious and partisan invitation for Republicans to come up with new ways to gut voting rights — is belied by decades of litigation brought by private parties under Section 2. Given that Congress has reauthorized the Voting Rights Act multiple times, the notion that the court had somehow wrongfully recognized a private right of action is preposterous.
The Justice Department’s actions underscore several disturbing realities voting rights advocates now face.
First, both Justice Samuel A. Alito Jr. (who concocted from whole cloth new restrictions on Section 2) and Gorsuch have essentially behaved as co-counsel in anti-voting legislation, clearing the way for more egregious attacks against voting access.
Second, Garland — having brought suits in both Georgia and Texas — cannot be faulted for lack of vigor in voting rights enforcement. His department has been systematically stripped of legal arrows to fight voter suppression. He is doing precisely as he should — finding every legal avenue still available to push back against the anti-democratic onslaught that Republicans have launched.
Third, given the 49-person Republican blockade against voting rights reform in the Senate, most recently invoked this week, the lawsuit reaffirms a simple, frightful reality: Unless Congress acts — and unless the Senate carves out an exception to the filibuster — voting rights will face a never-ending assault from GOP lawmakers and an activist Supreme Court. Without 10 Republicans for cloture, the ongoing refusal of Sen. Joe Manchin III (D-W.Va.) to stand up for voting rights puts him on the same side as the right-wing justices and Republicans who intend to retain power by eroding access to voting for those most likely to vote against them.
Finally, as the Justice Department must rely on tools designed to prevent discrimination against non-White voters and voters with disabilities, the Democratic Party must impress upon Americans that Republicans are engaged in a reckless effort to tear down the fabric of democracy. In that sense, the GOP onslaught, aided and abetted by the Supreme Court, threatens all Americans and democratic accountability itself.