The apparent refusal of President Trump’s Justice Department to engage in any meaningful, public enforcement of the Voting Rights Act has taken Republicans’ general hostility to the law to a whole new level.
The DOJ has not filed a single new Voting Rights Act case since the Trump administration took over — setting it apart from the last several administrations, Republican and Democratic.
While it did some litigating of cases under other election laws in the first half of the administration, the Justice Department’s Voting Section has not brought any new cases since 2018.
The current dry spell in DOJ voting rights enforcement is unprecedented, according to the DOJ’s own public record and what former voting section officials told TPM.
“It’s not that there is an absence of enforcement opportunities. Private plaintiffs continue to bring cases, some quite vigorously,” said Justin Levitt, an election law professor who served as a deputy assistant attorney general of the Civil Rights Division under President Obama. “The fact the department is currently involved in none of them is disturbing.”
Trump DOJ defenders have suggested that the overall downtick in VRA cases is part of a larger trend of states being less inclined to violate it. The Justice Department itself told TPM that enforcement of the VRA was continuing.
“The Civil Rights Division has continued to advance a number of open and active Voting Rights Act investigations around the country,” a DOJ spokesperson said in a statement. “These investigations are at various stages and, in keeping with the Division’s longstanding practice in the voting context, the Division keeps these investigations confidential unless and until a lawsuit is filed.”
While it’s impossible to know whether such investigations are underway, the public record speaks loudly, ex-DOJ officials told TPM.
“They can claim all they want that they have active investigations. If there are no lawsuits being filed, I really doubt that that’s correct,” said Gerry Hebert, a voting rights attorney at Campaign Legal Center who previously worked for decades at the Justice Department.
Enforcement that reflects a ‘political judgment’
Even past administrations that were skeptical towards the Voting Rights Act found ways — sometimes controversial — to enforce it that was in keeping with their broader agenda.
The 1965 law provided the DOJ two major enforcement mechanisms: Section 2, which lets the DOJ and individual voters bring lawsuits challenging discriminatory policies; and Section 5, which, until 2013, required certain states with a history of racial discrimination to get federal approval for election policy changes.
While the Reagan administration opposed a change to the law that made it easier to bring Section 2 lawsuits, it still filed VRA lawsuits under the provision.
George W. Bush’s DOJ caught flack for failing to file a VRA lawsuit on behalf of black voters in his first term. However, the administration did file a handful of cases in that period alleging discrimination against Latino voters, and the administration brought several VRA cases under its provision requiring language assistance for certain non-English speakers.
The push to protect Hispanic voters “to some extent reflects a political judgment that the George W. Bush administration was very interested in increasing the Republican share of the Hispanic vote,” William Yeomans, who spent 26 years at the Justice Department before leaving in 2005, told TPM.
More controversially, the George W. Bush administration was the first administration to bring a VRA case on the behalf of white voters, and Bush’s second term was rocked by an attempt to politicize the DOJ’s enforcement in favor of going after baseless claims of voter fraud.
From the Carter administration through today, the only DOJ that joins Trump’s in its lack of VRA lawsuits is George H.W. Bush’s. But even then, Bush 41 vigorously enforced Section 5, according to Yeomans.
“So it’s not as if the administration stepped away from Voting Rights Act enforcement altogether,” he said.
The post-Shelby world
The Supreme Court’s 2013 decision in Shelby County v. Holder dramatically altered the legal landscape around the VRA in ways that make the current lack of DOJ enforcement even more striking.
By gutting Section 5, the court robbed the DOJ of the tool that required certain states and jurisdictions to get either the department’s or a federal court’s permission before changing their voting practices. The decision ushered in a wave of discriminatory voting restrictions in the parts of the country that previously wouldn’t have been allowed to implement them.
The Obama administration has been criticized by voting advocates for not bringing more Section 2 lawsuits. But the ones it did bring were against the biggest post-Shelby offenders in cases that were extremely complicated and time-consuming.
For these reasons, it’s not always an “apples to apples” comparison to compare the number of cases between one administration and another, according to Levitt, given that that number can depend on “the size of the case, the difficulty of the case, on the amount of evidence that needs to be prepared, on the number of other parties that may be involved in the case.”
“But zero is a really big number,” he added, referring to the current Trump administration record.
‘Where are they?’
While the voting section has taken on some non-VRA cases since Trump, its public activity has been nowhere near that of previous administrations. Since the summer of 2018, when the administration settled a voter registration case and a case under the Uniformed and Overseas Citizens Absentee Voting Act, there have been no new cases filed at all by the voting section, according to the DOJ webpage listing voting section litigation.
Perhaps more troubling is how it’s handled some high-profile voting cases that were handed off from the Obama administration. In both a Texas redistricting case and a voter ID case, Trump’s DOJ switched to Texas’ side. Likewise, in an Ohio voter purge case, Trump’s DOJ reversed its position to defend the policy by the time the case was headed to the Supreme Court, which ultimately backed the policy.
In less controversial cases, the work of the Trump DOJ has been more in line with previous administrations, according to Levitt.
He praised the work of career attorneys on a 2019 settlement of a VRA case started by the Obama administration, as well as its work on a voter purge case in Kentucky and in two cases brought by the Trump administration under the Uniformed and Overseas Citizens Absentee Voting Act
“I don’t think [the problem is] the civil servants of the Trump administration. My question is, where are they? When they’ve been allowed to do work, they’ve done really good work,” Levitt said.
Meanwhile, Hebert — who still litigates voting rights cases on behalf of the Campaign Legal Center — said that, before this administration, he welcomed the DOJ’s involvement in his cases because of the “credibility” and “resources” it brought to the table.
But, he said, given the scandals that have plagued the Justice Department since the Trump administration took over, “I don’t think the court has the same respect for the DOJ.”