The Biden administration is eyeing ways to bolster the Justice Department’s voting section after a sleepy four years under the Trump administration – particularly as state legislatures draw new congressional districts and Republicans seek to pass voting restrictions.
President BidenJoe BidenBiden invokes Trump in bid to boost McAuliffe ahead of Election Day Business lobby calls for administration to 'pump the brakes' on vaccine mandate Overnight Defense & National Security — Presented by Boeing — Afghanistan reckoning shows no signs of stopping MORE campaigned on defending and expanding voting rights, but he has inherited a Department of Justice (DOJ) that was largely silent on the issue during the Trump era.
In recent years, some of the department’s career lawyers have left or transferred to other sections as the Trump administration became the first to not bring a single enforcement action under the 1965 Voting Rights Act.
The voting section at the Justice Department also has not hired a single outside attorney since 2016, a DOJ source told The Hill, and has around 15 lawyers, about half the amount during the Obama years.
“This is really time sensitive. It needs to not just be a focus shift -- it just needs to be really staffed up and resourced up,” said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice.
“We have been living through a period of repeated assaults on voting rights across the country,” she said, calling the DOJ section a principal defender of voting rights.
“It’s absence from the field has been really devastating.”
The next few months will be a crucial time for this small wing of the Justice Department.
Disinformation surrounding elections is at an all time high, leading to real world violence like the Capitol riot last month that left five people dead.
At the same time, state legislatures are poised to pass a flurry of bills that could weaken voting rights while lawmakers draw new political boundaries that are likely to test restrictions on gerrymandering.
It’s also the first redistricting cycle after the Supreme Court’s 2013 Shelby County decision that stripped DOJ of its right to review the maps of states with a history of discrimination.
Many of those factors were highlighted on Capitol Hill recently, with multiple senators grilling attorney general nominee Merrick GarlandMerrick GarlandPress: No excuse for Garland to not prosecute Bannon Overnight Defense & National Security — Presented by Boeing — US 'deeply alarmed' by reports of military takeover in Sudan Prohibit the actions of extremism, but bear with the rhetoric MORE over his plans to secure voting rights during his confirmation hearing this past week.
“I regard my responsibilities with respect to the Civil Rights Division as at the top of my agenda priorities lists. So, you have my commitment to do everything I can in this area,” Garland said.
The section at DOJ underwent whiplash when former President TrumpDonald TrumpJan. 6 panel plans to subpoena Trump lawyer who advised on how to overturn election Texans chairman apologizes for 'China virus' remark Biden invokes Trump in bid to boost McAuliffe ahead of Election Day MORE took office.
After he was sworn in, DOJ immediately switched positions on two Obama-era lawsuits challenging new voting policies in Texas and Ohio.
Over time, several lawyers in the division either switched to other sections or left the department entirely.
“They weren't doing much, and they were really depressed about not doing much, and it sucks to be a person that is hard charging and has given up lots of other opportunities to do civil rights work, and then essentially be told you’re not going to be doing anything for four years,” Justin Levitt, a professor at Loyola University Law School who previously served as deputy assistant attorney general in DOJ’s civil rights division during the Obama administration, said of his conversations with those within the section.
“I don't like comparing the raw numbers to each other, but zero is a number that speaks pretty loudly,” he said of the lack of enforcement actions.
If personnel is policy, Biden has already signaled an appetite for a reversal. Former civil rights division chief Vanita Gupta has been nominated to serve as associate attorney general, the third highest ranking position. And longtime civil rights lawyer Kirsten Clarke, executive director of the Lawyers' Committee for Civil Rights Under Law, has been tapped to lead the civil rights division. Pamela Karlan, another former high ranking DOJ official with years working on civil rights, will serve as her deputy.
“They are three of the most excellent people you could ask for and have been leaders in the voting rights community for years,” said Gerry Hebert, a senior director with the Campaign Legal Center who spent 20 years at DOJ, including stints in the voting section.
“I think the challenge for the Biden administration is going to be they have to start looking at cases that could have been brought in the last four years and were recommended by career people and turned down and seeing whether or not they are still ripe for filing,” he said.
“And the other is really to probably bring back the morale of the professionals in the civil rights divisions across the board.”
Levitt, however, described a workforce champing at the bit to reengage.
“I don't think anything will be keeping career lawyers from bringing good cases in the Biden administration,” he said.
“They’re opening the spigot again and letting the career lawyers do what they came to the government to do. I hope they'll be hiring modestly. I hope they’ll be bringing people from other sections back to the voting section. But most of it is just about doing enforcement again. The light has turned green. And you’re going to be seeing traffic moving as a result.”
The department has indicated it plans to expand, posting job openings in the voting section in the past week.
“The voting section is gearing up to address the Voting Rights Act issues that arise during each decennial redistricting process,” a department spokesman told The Hill.
But to make a difference, the department will have to be aggressive.
Weiser said the Shelby County decision “means there’s slightly less for the department to do because it had a critical role under section 5,” which granted it the right to pre-clear maps from certain states.
“On the other hand, there's a lot more for us to do because we anticipated this spike in discriminatory redistricting efforts across the country and we can't just review them and reject them or comment and negotiate with the jurisdiction. Going forward we’re going to have to bring lawsuits to enforce the remaining section of the Voting Rights Act.”
State legislatures this year have already introduced more bills to expand voting rights than restrict them, according to a tally by the Brennan Center.
But there are still a number of measures, largely sponsored by Republicans, that seek to limit voting by mail, impose stricter voter ID requirements, and make it more difficult to get registered to vote and remain on voter lists.
DOJ could step in to push back on those laws under a portion of the Voting Rights Act prohibiting voting procedures that discriminate on the basis of race, color, or membership in a “language minority group.”
Levitt warns, though, that such cases will take time to build while DOJ is limited to the authorities Congress has granted it, noting that the agency “isn’t a rapid response institution.”
“Unless Congress passes a law, there is going to be a lot of stuff that is suboptimal or wrong that isn't illegal under law and DOJ won't be able to do anything about that.”
What advocates really want is for Congress to pass the John LewisJohn LewisTo ensure equality for all, Senate must end filibuster Biden injects new momentum into filibuster fight Patience with Biden wearing thin among Black leaders MORE Voting Rights Advancement Act, which among other things would restore DOJ’s ability to review redistricting maps, creating a new formula for determining which states would be subject to the additional oversight.
“We have to bring the stragglers up to best practices to strengthen voting rights across the country,” Weiser said.