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Flood of Voting Laws Confront Rights Enforcers With Uphill Fight

Feb. 8, 2022, 5:13 PM

The Justice Department’s voting section faces significant hurdles in challenging new state election laws and redrawn maps that Democrats say will suppress or dilute minority votes.

The newly staffed-up section of the Civil Rights Division that’s already sued Georgia and Texas confronts long odds in court nearly a decade after the Supreme Court dramatically curtailed its ability to police state and local election administration.

On Monday, the justices ruled 5-4 to reinstate an Alabama congressional map that creates only one district expected to elect a Black representative. A lower court had ruled federal law requires a second one.

What’s more, the division’s longstanding risk-averse culture designed to avoid litigation losses and perception of partisanship is being tested as progressives demand bold action in the absence of new voting rights legislation. Time is running out as the section’s enforcers must sift through thousands of new state and local redistricting plans and decide which, if any, to challenge before the midterm elections.

“All of these things work together to put probably the highest level of burdens we’ve ever seen on the voting section in history,” said David Becker, who heads the Center for Election Innovation and is a former DOJ voting section attorney.

Pressure for the Justice Department to act forcefully is only likely to grow now that Democratic legislation revamping election law has stalled in the Senate.

“I do expect them to be bold,” said Gerry Hebert, a longtime former voting section attorney who consults for the Campaign Legal Center. “This is a time to put all hands on deck for enforcement of the Voting Rights Act because frankly I think our democracy hangs in the balance if we don’t.”

High Hurdles

In 2013, the Supreme Court effectively removed DOJ’s ability to vet proposed voting changes, a process known as pre-clearance. The court, which now has a 6-3 conservative majority, further hamstrung the department in a 2021 decision that set a high threshold to prove an election measure is discriminatory under Section 2 of the Voting Rights Act, which bans voting practices that discriminate based on race, color, or language.

That leaves a narrow lane for the agency’s attorneys to operate—litigating case-by-case, with the burden on the government to prove bias.

It’s important that the voting section and Civil Rights Division as a whole be “very deliberative,” Becker said.

“You can’t litigate in this space right now without recognizing that a lot of these cases might get to the Supreme Court,” which “has not necessarily been expansive in its view of federal power to enforce voting rights,” Becker said.

But a dozen former voting section employees told Bloomberg Law that the office’s culture leaves it cautious, sometimes to the point of inaction. A multi-layered review process can last months before approval of any lawsuit.

There will be “critiques” of DOJ for not bringing enough voting rights cases, “but the process that the department follows” will “limit where those cases are filed,” said Gilda Daniels, a former deputy chief of the voting section who’s now an election law professor at the University of Baltimore Law School.

The unit drew scrutiny in a DOJ Inspector General report that exposed politicized hiring under the George W. Bush administration. A subsequent report found “polarization and mistrust” between section managers and their subordinates that continued into the Obama administration. This included tensions arising from Bush appointees’ pursuit of reverse-discrimination cases on behalf of white voters.

The section experienced significant attrition, carrying into the Trump years when it filed only one lawsuit under Section 2 of the Voting Rights Act.

Cautious Culture

The senior managers now leading the section are career employees who survived the turbulence and remain cautious even as more aggressive political appointees have assumed leadership in the Civil Rights Division, five former voting rights section employees said, speaking on condition of anonymity.

The Biden administration has turned to two prominent voting rights advocates, Kristen Clarke—a former voting section attorney—to lead the Civil Rights Division, and Pamela Karlan who serves as her deputy overseeing voting litigation.

Under Attorney General Merrick Garland, who pledged to double the voting section’s staff, its roster of attorneys has grown by at least eight, according to a review of LinkedIn profiles and court filings. A DOJ spokeswoman declined to provide specifics about the section’s headcount. Past voting section attorneys said the staff had shrunk significantly in recent years, previously hovering in the range of 30-40 lawyers.

The additional hires makes it easier to juggle multiple labor-intensive investigations and lawsuits. But more resources won’t necessarily overcome the heightened legal standard put in place by the Supreme Court.

“You’re hiring better and better carpenters, but you’re only giving them half the tools that they had before,” said Eugene Mazo, an election law professor at Seton Hall Law School.

In a Jan. 5 speech, Garland said the Justice Department will “do all it can to protect voting rights with the enforcement powers we have” but it’s “essential that Congress act” to elevate those powers.

The Senate has since voted down House-passed legislation that would’ve restored the Justice Department office’s pre-2013 authority to sign off on voting changes before they take effect.

State Actions

The section’s lawyers must review two sets of recent changes enacted by states.

The ongoing once-a-decade redistricting cycle is yielding gerrymandered maps that critics say are overtly designed to offset the voting strength of growing Black and Latino populations. In addition, more than a dozen GOP-controlled state legislatures enacted a variety of voting restriction laws last year, fueled by former President Donald Trump’s false claims of fraud in the 2020 election.

“We are looking carefully at methods of election for governmental bodies and the plans they are drawing in response to the 2020 census,” the DOJ spokeswoman said in a prepared statement.

The department‘s suit against Texas in December is among the first to test the administration’s argument that a redrawn map illegally hands more voting strength to whites at the expense of minority voters.

DOJ alleges Texas designed its two new congressional seats to have “Anglo voting majorities” despite minorities accounting for 95% of its population growth in the 2020 Census.

VIDEO:Legally Rigging Elections: Redistricting, a Brief History

Challenging Process

Civil rights organizations and private law firms have mobilized to sue over city, county, and state redistricting maps under the Voting Rights Act at a much faster pace than DOJ.

But they say they need the Justice Department to join their suits or file new complaints and bring to bear government resources in cases that depend on expensive data analysis and expert witnesses to produce evidence of a discriminatory purpose or effect.

The investigations involve mapping software, mathematical analysis, assessing the voting patterns broken down by racial group, and interviews with legislators and community members, several former section attorneys said.

Even the Justice Department must pick and choose among priorities with an eye toward what might succeed in court.

Joe Rich, a former voting section chief, said the Justice Department should “be more aggressive in bringing Section 2 cases that challenge redistricting just because I think those cases are more winnable than challenging a voter suppression law.”

Alabama an Outlier?

The Alabama redistricting case highlights the challenges the Justice Department and private parties face.

A coalition of nonprofits initially felt fortunate that a federal judicial panel expedited their trial over the holidays to ensure it came to a timely conclusion before voting starts, said David Dunn, a Hogan Lovells partner representing the plaintiffs in Alabama. The panel struck down the state’s congressional map on Jan. 24, ordering the state legislature to draw a new one with more Black-majority districts.

But the Supreme Court’s ruling on Monday means the original Republican-drawn map will almost certainly be in place in the November election.

That sent an ominous signal for parties across the country wishing to overturn district maps this election cycle. DOJ’s involvement probably wouldn’t have made a difference in the Alabama case, yet the voting section plays an essential role in other jurisdictions, Dunn said.

“In this concentrated period that occurs every ten years,” Dunn added, “the department has really got to think hard about how much can it bring to bear and how can it best spread around limited resources.”

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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