'An embarrassment': Trump's justice department goes quiet on voting rights
Photo: Nicholas Kamm / AFP / Getty Images
The Department of Justice (DoJ), the agency with unmatched power to prevent discrimination at the ballot box, was extremely quiet in enforcing voting rights before the 2020 election, former ministry lawyers say.
Concerned that Attorney General William Barr is using the department to advance Trump's political interests, observers say the department does not protect minority group voting rights. Remarkably, the department has been involved in a handful of cases since Donald Trump's inauguration, but has largely defended the electoral restrictions rather than opposing them.
The ministry's limited public activity was remarkable, especially since voters in several states had to wait hours for a vote and jurisdiction quickly restricted personal voting opportunities due to the Covid 19 pandemic.
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"It just seems like no one is home, which is tragic," said William Yeomans, who has worked for over two decades in the Ministry's Civil Rights Department, which includes the electoral division. "This is particularly sad given the plethora of voting issues that require action from Georgia to Wisconsin."
By the end of May, the Justice Department had not filed a new case under Trump's presidency under the Voting Rights Act, the powerful 1965 law that outlawed discrimination based on votes. (In 2019, a case was closed in Michigan for the Voting Rights Act that was filed in the last few days with the Obama administration.)
"When the top cop says," You know what, I'm busy with other things, don't bother me, "this sends a message. And it's exactly the wrong message that needs to be sent," said Justin Levitt, who served as deputy attorney general in the DoJ's Civil Rights Department during the Obama administration.
"The Civil Rights Department has continued a number of open and active investigations into the Voting Rights Act across the country and is taking these investigations seriously," said Matt Lloyd, a DoJ spokesman. "These investigations are in different phases. In line with the department's longstanding practice in the voting context, the department handles these investigations confidentially unless and until a lawsuit is filed."
The Department of Justice provided the Guardian with a list of almost two dozen cases and matters that the voting department has been involved with since 2017. The list included several comparisons with states to ensure that military voters could receive their postal votes. The ministry has also come to terms with several states to get them to comply with the federal law to clean up the electoral roll - an issue that has attracted the attention of Republicans and conservative groups in recent years.
Several former DoJ officials reviewed the list of cases at the Guardian's request and said it did not reflect the strict enforcement of voting law. Yeomans found that the department had rejected the interests of minority voters in all of the department's main disputes.
"The list is embarrassing. It documents that the Voting Rights Department has given up its responsibility for the enforcement of the Voting Rights Act. There is little substance here, ”he said. "For a very large group of lawyers, this is poor production."
Sasha Samberg-Champion, another former Attorney General lawyer, said the cases did not reflect sound voting enforcement.
"Frankly, this list makes it difficult to see what the proxy department does all day," he said.
Suppression of voters is widespread and the absence of the DoJ is a major blow to collective efforts to save civil rights
The Department of Justice has traditionally not been involved in many voting cases, but doing so can make a big difference. The department is well equipped and, because it represents the position of the United States, has credibility that cannot be achieved by private plaintiffs. It can have leverage with local jurisdictions and the judges listen when the department speaks. While interest groups and political parties bring a flood of voting rights lawsuits, the Department of Justice simply has “no substitute” for enforcing voting rights, said Chiraag Bains, a former civil rights lawyer during the Obama administration.
"Voter repression is widespread and the absence of the DoJ is a major blow to the collective effort to save civil rights in this electoral cycle," said Bains, now director of legal strategies for Demos, a civil rights tank that often campaigns against election restrictions. “The department should bring these cases themselves or at least support us with Amicus submissions. They are nowhere to be found. It is a breach of duty. "
Trump has said mail-in-voting is his "biggest risk" for re-election, and Barr has signaled his opposition to it. The attorney general told Fox News on Sunday that foreign countries could print fraudulent postal ballots to disrupt the election, something that, according to election officials, was practically impossible.
The Department of Justice's silence comes at a time when the Supreme Court has severely restricted the tools at its disposal to prevent discriminatory voting processes. In 2013, the court issued an important provision in the Voting Rights Act that required certain jurisdictions with a history of election discrimination to approve changes in voting rights prior to their entry into force, either by the Department of Justice or a federal court in Washington DC. Now the department and civil rights groups need to proactively file lawsuits to stop discriminatory election laws.
Following this decision in 2013, Barack Obama's Department of Justice was involved in three major voting lawsuits - two in Texas and one in North Carolina - signaling that the department would continue to aggressively enforce the remains of the Voting Rights Act. The Trump administration has not taken any similar major enforcement actions.
"My impression is that they are not enforcing the voting rights law," said Yeomans. "It's the Civil Rights Department. It's a plaintiff's institution. It's a proactive institution. The way to make it ineffective is to do nothing."
In some of the key cases where it was active, the agency reversed its position vis-à-vis the Obama administration to adopt a new stance that supports voting restrictions.
Weeks after Trump took office, the Department of Justice announced that it would end a long-standing legal claim that the Texas election card law - one of the strictest in the country at the time - was passed with discriminatory intent. Months later, in another closely watched case, the division switched sides and dropped opposition to an Ohio law that allowed the state to aggressively remove voters from the lists, arguing before the Ohio Supreme Court. In 2013, the Department of Justice argued that Texas should be placed under federal supervision after it was found that it deliberately discriminated against voters during the redistribution so it would not do it again. But last year it reversed its position.
In all three cases, the pleadings to explain the reversals were not signed by departmental attorneys - a strong signal that they disagreed with the content. "The reversal of voter ID and redistribution in Texas should be scandalous," said Levitt, who worked on the cases in the Obama administration.
For decades, the department had a reputation for enforcing voting rights laws relatively consistently. Even during George W. Bush's tenure, when the civil rights department was shaken by a political recruitment scandal, the voting department filed several cases under a Voting Rights Act that guaranteed non-English-speaking people access to the ballot, said James Peyton McCrary, a historian, who worked in the electoral department from 1990 to 2016.
"The Department of Justice has long had a reputation for enforcing the Voting Rights Act and not doing politics," said Gerry Hebert, a voting lawyer at the Campaign Legal Center who has worked in the department for over two decades. "Those of us who worked in private practice or in nonprofit organizations often welcomed the Department of Justice's participation because not only did they have the honest reputation of being a broker, but the courts respected their views based on their vast experience."
It can be beneficial for the public to stay out of high-profile cases given this administration's track record
The department has seen some encouraging signs recently. In the late May decision, she announced an agreement with the South Dakota school district under the Voting Rights Act. The district agreed to change the way candidates were elected to the school board after the Department of Justice argued that the current system discriminated against the district's vast Indian population. The department also announced an agreement in Arkansas under another federal law in early May that will make it easier for residents there to update their voter registration.
“Both are pretty good and the product of professional lawyers who do what professional lawyers do. There's a lot more the Section could do, but both are good signs, ”Levitt said of the cases.
Samberg champion recently saw a silver lining in a South Carolina case where the Department of Justice briefly argued that South Carolina's witness testimony for postal voting did not violate the Voting Rights Act. He noted that while the DoJ had considered a particularly narrow issue in the case, it had decided not to weigh the other arguments that question the law in the case.
"It's a small win, but I think it's important - especially because I imagine the judge couldn't help but notice the DoJ's abstention from the other allegations and draw some conclusions about their merits ", he said.
Some proxy attorneys also found that the department's silence was bilateral. While the department isn't particularly helpful in enforcing voting rights, it doesn't bring with it a wave of cases that affect election protection.
"I actually think it can be beneficial for the public to stay out of high-profile cases given this government's track record," said Bains.
As the election approached, Yeomans said he was concerned that Barr would use the department to speed up law enforcement for non-citizens and other non-voting voters. The civil rights department remained calm.
"You can bet that the US law firms will be fired before the election and everyone is ready," he said. "This can be intimidating, especially when there is no counterweight."
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