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US Voting Suits Hinge on High Court Case, Ex-DOJ Official Says

Oct. 3, 2022, 8:45 AM

A former top official overseeing the Justice Department’s voting section defended its wait-and-see approach to pursuing litigation as the Supreme Court takes up an Alabama redistricting case that could further erode Voting Rights Act protections.

“I do not think the section is overly cautious,” said Pamela Karlan, who departed in July as Civil Rights Division principal deputy supervising the voting section in the Biden administration. “The federal judiciary is hostile in some ways to an expansive reading of the Voting Rights Act, and we do ourselves no favors by filing lawsuits that ultimately will lead to the constriction of the tools we have for fighting vote dilution.”

In Merrill v. Milligan arguments set for Tuesday, the justices will consider Section 2 of the Voting Rights Act, which blocks state voting practices from thwarting voting rights based on race. The appeal over Alabama’s opposition to a majority-Black district threatens to further hobble the act that the justices cut back in previous cases.

Future DOJ voting litigation “in the next couple of years will depend in substantial part on what the Supreme Court says in the Milligan case,” said Karlan, who also had a stint leading DOJ voting rights enforcement in the Obama administration.

“In the same way that Gingles gave a roadmap and told you what you needed to do to win a voting rights case,” Karlan said of the 1986 Supreme Court test for vote dilution claims, “Milligan is going to alter that roadmap in some ways.”

“Once we see the new roadmap, that will tell the voting section which cases are plausible to bring, and which ones are not,” added Karlan, a Supreme Court litigator who’s now back at Stanford law.

She didn’t foreclose the possibility of the department wading into more state and local suits alleging racial discrimination, following challenges to Arizona’s voter ID law, sweeping changes enacted in Georgia, a Texas law’s restrictions on voter assistance and absentee voting, and Texas’s redistricting plan.

Local Challenges

While garnering fewer headlines, the department’s sole local challenge—over Galveston County, Texas’s newly drawn election map—could serve as a model. Karlan said the voting section is looking into other cases involving discrimination in city council or county commission elections.

Those “smaller cases” are “really important for the voting section to do” because they get less attention from nonprofit civil rights groups, she said. Yet she acknowledged that resource limits and current lawyers focused on the labor-intensive state cases will make it tough to replicate Galveston.

“I would expect more cases, but I wouldn’t expect there to be a flood of them,” Karlan said.

Attorney General Merrick Garland has prioritized doubling the staff of the voting section to maximize its limited enforcement powers. But Karlan said more lawyers and social science experts are necessary if the section is to take on much more litigation.

“All of the lawyers there are now fully employed,” she said.

Too Slow?

The Justice Department’s go-slow approach has been criticized by some in the voting rights bar who say it needs to more aggressively counter a wave of red state election law overhauls inspired by former President Donald Trump’s unsubstantiated claims that the 2020 election was stolen, along with heavily gerrymandered maps enacted in the ongoing once-a-decade cycle.

“I don’t think that this is a time for caution at all because there are so many assaults on the right to vote that are occurring,” 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. “We should continue to use the tools that we have instead of anticipating that they will be taken away.”

Karlan isn’t convinced that Milligan is certain to tie DOJ’s hands. “There’s nobody better” than the department’s career voting lawyers at determining the limits and opportunities to file more complaints “given the facts that they have on the ground and given the legal standard that the Supreme Court announces,” she said.

Public interest nonprofits and law firm attorneys working pro bono continue to sue without waiting for DOJ to join as co-plaintiff. The department’s resources and sway with courts are still considered helpful, but not essential.

“Suits can be brought before we find out what the Supreme Court does in Milligan,” said Ezra Rosenberg, co-director of the voting rights project at the Lawyers’ Committee for Civil Rights Under Law.

“It’s very possible to bring a suit today, start factual discovery, and see if the Supreme Court does anything that affects how we approach these cases before discovery concludes, or even ask the Court to reopen discovery, if the Court changes the standards,” Rosenberg added.

But DOJ’s voting section has a reputation for exercising restraint and deliberation, with a multi-layered review process before ever filing suit.

“Lawyers in the Civil Rights Division are unlikely to file lawsuits they know are doomed to fail,” said Lisa Manheim an election law professor at the University of Washington. “Bringing a lawsuit that eventually gets dismissed generally is not a good use of DOJ resources. Given the sweeping arguments about Section 2 that Alabama is advancing in Milligan, it makes sense if DOJ is waiting to see how the Court resolves the case before filing complaints against other jurisdictions.”

Alabama is asking the justices to overturn Gingles, which for 35 years has provided a three-part test to establish unlawful racial gerrymandering. If the state succeeds, a new standard would upend DOJ’s analysis.

But waiting for a decision by next June, plus added time for DOJ to discern the justices’ intent means “you’ve essentially lost a year of protecting the right to vote,” Daniels said. “I would certainly advocate being more aggressive than what Professor Karlan suggests.”

—With assistance from Jordan S. Rubin

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