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Back to the future on voting rights

6 minute read

U.S. Attorney General Merrick Garland delivers remarks on voting rights at the U.S. Department of Justice in Washington, U.S., June 11, 2021. Tom Brenner/Pool via REUTERS

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(Reuters) - U.S. Attorney General Merrick Garland announced a shift in the government’s approach to protecting Americans against voter suppression last Friday, saying his Justice Department and the Federal Bureau of Investigation will more aggressively oppose efforts to curb the franchise, especially for people of color.

The DOJ’s Civil Rights Division will double its enforcement staff for protecting voting rights and will "promptly prosecute any violations" of federal voting laws, Garland said, adding that prosecutors will scrutinize a rash of newly enacted laws in southern, Republican-led states that make it harder to vote and undermine public confidence in our democracy.

Garland also called on Congress to pass election reform measures and reinstate key provisions of the 1965 Voting Rights Act. The U.S. Supreme Court had gutted those provision in 2013 in Shelby v. Holder, on the grounds that the country had made sufficient progress on race relations that special scrutiny of voting law changes in former slaveholding states was no longer needed.

Voting rights advocates praised Garland's course-reversal, which follows a period of federal inaction on voting rights enforcement during the Trump administration, though some also expressed caution about the lack of detail on the new enforcement strategy.

Civil Rights Division representatives didn’t answer my questions as to the current staffing numbers of the voting rights section, or on any specific enforcement actions they’re undertaking or planning.

The shift in approach is sorely needed, given that 14 U.S. states have recently enacted laws making it more difficult to vote – not to mention the 61 other bills with restrictive provisions still moving through 18 state legislatures, according to a report by the Brennan Center for Justice at New York University School of Law.

Seen from a different angle, though, the Justice Department’s “new” enforcement strategy also represents an admission of national failure, and a dire warning. Garland's announcement suggests we may be at the most precarious moment in the decades-long period of peaceful democracy since that infamous Sunday in 1965, when Alabama responded to hundreds of non-violent racial justice marchers with a detachment of horse-mounted police, wielding batons, fire hoses and tear gas.

And, at least for now, there is little hope that the Supreme Court will address the problem, and only the slimmest of chances in Congress.

During his remarks, Garland shared a story about a 1961 meeting between his predecessor, Robert Kennedy, and the then-civil rights division chief, Burke Marshall.

The preclearance provision of the VRA that mandates extra scrutiny when certain jurisdictions change voting rules wasn’t yet in effect (Garland called it “the department’s most effective tool to protect voting rights over the past half-century.”).

That made DOJ’s best move in fighting racism at the ballot box a tall order: “The only way to guarantee the right of Black Americans to vote was to bring individual actions in each county and parish that discriminated against them,” Garland said.

When Kennedy approved the strategy, Marshall replied: “Well General, if you want that, we’ve got to have a lot more lawyers.”

Today, “again, the Civil Rights Division is going to need more lawyers,” Garland said.

Looking backward, as we look forward, in a sense.

Marshall’s First Assistant, John Doar, recounted the period in a law review article in the Florida State University Law Review two decades ago.

“In 1960 the Division faced extraordinary obstacles,” Doar begins. Throughout the South, federal investigators and prosecutors found a complex legal and social network designed to protect and preserve the caste system.

“A means used was official corruption and official and unofficial intimidation in connection with voting,” Doar wrote.

State officials at the time argued that they needed tests to determine “how literate or intelligent” people must be before being allowed to vote. Those same states provided inferior public education for Black people, Doar wrote; officials quite knowingly registered “many whites who did not finish grammar school," even though “many high school and college educated blacks were repeatedly rejected.”

One Black voting rights activist in Mississippi who was a witness to voter intimidation was killed in 1961 by a white man he'd grown up with — Mississippi state senator Eugene Hurst, Doar recalled. A witness to that killing was later killed too.

“I can still recall how the Division operated during the 1961-1963” period, Doar wrote.(There were about 15 lawyers in the Civil Rights Division then, by the way). The government had to deploy FBI agents to test voting procedures in many towns. DOJ lawyers would spend up to “sixteen straight days in the field” investigating.

After the killings in Mississippi, the division prepared cases against the sheriff, police chief and others -- but backed off because officials believed that suing local law enforcement "might have led to uncontrollable violence,” Doar said.

DOJ did file numerous county and statewide lawsuits. But there were major obstacles to those as well. The Department eventually told Congress that "litigation in the federal courts as the solution" to voter suppression is inadequate, "tarnished by evasion, obstruction, delay, and disrespect," including from judges, Doar recalled.

Needless to say, in 2021, Americans aren’t being shot in public, in broad daylight, for trying to exercise their right to vote.

But —like in 1961 — there is no longer a preclearance requirement.

We are being subject to new formal ID requirements, prevented from using ballot drop-boxes, or handing out food to people waiting in long voter lines. And we are again seeing serious concerns about intimidation — and deadly violence, in connection with elections.

Also like the 1960s, the justifications for voting restrictions in this era are pretextual: Republican lawmakers have cited Trump’s unfounded claims of voter fraud, which have now been rejected as false by numerous courts, state and federal election officials, and researchers.

It makes some sense, then, that DOJ is re-adopting its 1961 strategy. But it's not so much a promising development as a blaring alarm.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com

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