From Steve Rosenfeld, for Voting Booth:
In November, the DOJ sued Texas after the adoption of 2021’s Senate Bill 1, which restricted voting options for people with disabilities—which also clashed with the Voting Rights Act (VRA). The new Texas law also canceled an absentee ballot if a voter did not properly fill out their ballot return envelope. That clerical “error or omission” was “not material in determining” a voter’s eligibility and rejecting ballots, the DOJ argued, citing the Civil Rights Act of 1964.
The Texas lawsuits represent an emerging Justice Department strategy to defend voting rights using as wide a palette of federal authority as possible. But the DOJ also is acting under statutes that have been weakened by the Supreme Court and against a backdrop where former President Donald Trump and many Republicans, including state and federal legislators, keep attacking 2020’s election—which, in some high-profile instances, are beyond the DOJ’s authority to intervene….
Many voting rights advocates have been frustrated that the DOJ has not been more aggressive, just as they have been frustrated that the U.S. Senate has not passed legislation to counter the historic assault. Yet the Biden administration appears to be building a foundation for upholding voting rights given its tools. Today, that means issuing warnings and suing states rather than overruling egregious laws and rules, which the Supreme Court ruled was unconstitutional in 2013.
Consider the escalating attacks by legislators and county sheriffs in Wisconsin on the Wisconsin Elections Commission (created by GOP lawmakers in 2015) and on local officials in Madison and Green Bay, two Democratic epicenters. So far, what appears to many observers as abuses of power by elected officials are outside of the DOJ’s reach, because, scholars say, they involve state-level politics and have not yet hurt voters or violated federal law….
As summer progressed, the DOJ’s wider voting rights strategy started to emerge.
In July, the DOJ issued a “guidance” document that laid out its premise for suing to protect “methods of voting” under the VRA and U.S. Constitution, and previewed arguments it would make. That guidance anticipated the DOJ’s first lawsuit against Texas in November—in response to a new law allegedly foreclosing voting options for voters with disabilities, and also rejecting any absentee ballot return envelope that wasn’t filled out properly. The DOJ cited the VRA’s protection of voters with disabilities and contended that a little-used part of the 1964 Civil Rights Act barred disqualifying otherwise legal ballots for a voter’s mistakes on envelopes….
These actions are the contours of an overall strategy to use the legal tools that remain available: issuing guidance on voting rights and election administration; sending letters to state legislators conducting post-2020 election audits noting that those inquiries might violate voter intimidation laws; filing “statements of interest” in lawsuits brought by voting rights groups; top officials giving speeches signaling where and why the DOJ is likely to sue; and then filing lawsuits.
These tools and arguments, as Clarke said, are built atop federal civil rights laws that have been upheld by the Supreme Court over the years, including by its current conservative majority. But top DOJ officials are well aware of the limitations of their authority.