By Attorney General Merrick B. Garland
I was sworn in as Attorney General exactly three months ago. In that time, I have had a chance to work directly with several of you on some of the most consequential matters in the Justice Department.
I consulted with the division in connection with the opening of two investigations regarding potential patterns of unconstitutional policing, in Minnesota, Minneapolis and Louisville. I consulted with you to discuss the criminal indictments on civil rights charges for the death of George Floyd. And I have consulted with you regarding the strategy for protecting every American’s right to vote.
Today, I am looking forward to speaking to you – all of you – about the work of the Voting Section.
That work has personal resonance for me. When I first came to the Justice Department as a 26-year-old, the Assistant Attorney General for Civil Rights, Drew Days, took me under his wing, beginning a life-long friendship.
At that time, Drew was working on the brief in City of Rome, which defended the constitutionality of the 1975 extension of the Voting Rights Act and its preclearance provision. The brief was filed just weeks after I arrived at the department. And seven months later, in an opinion by Justice Thurgood Marshall, the Supreme Court endorsed the division’s position that the extension of the Act was “plainly a constitutional method of enforcing the Fifteenth Amendment.”
There are many things that are open to debate in America. But the right of all eligible citizens to vote is not one of them. The right to vote is the cornerstone of our democracy, the right from which all other rights ultimately flow.
In introducing the 1965 Voting Rights Act, President Johnson told the Congress: “It is wrong – deadly wrong – to deny any of your fellow Americans the right to vote.”
In signing the 1982 reauthorization of the Act, President Reagan stated: “The right to vote is the crown jewel of American liberties, and we will not see its luster diminished.” And in signing the 2006 reauthorization, President Bush stated that, “[t]he right of ordinary men and women to determine their own . . . future lies at the heart of the American experiment.”
This proposition has not, of course, always been accepted. When the Constitution was ratified in 1788, most states limited the right to vote to white men, and often only those white men who owned a certain amount of property.
Since then, constitutional amendments have expanded the franchise. The Fifteenth and Nineteenth Amendments prohibited denying citizens the right to vote on account of race and sex. The Twenty-Fourth Amendment outlawed poll taxes. And the Twenty-Sixth Amendment extended the right to vote to citizens who are 18 or older.
But progress to protect voting rights – and especially for Black Americans and other people of color – has never been steady. Moments of voting rights expansion have often been met with counter-efforts to curb the franchise.
And actually securing the protections guaranteed by our Constitution and laws has always required vigilant enforcement by Congress, the courts, and the Justice Department.
This department’s role effectively began in the 1870s.
The Reconstruction amendments adopted after the Civil War were a dramatic step forward. The framers of the Fourteenth and Fifteenth Amendments recognized that access to the ballot was a fundamental aspect of citizenship and self-government.
Representative John Bingham – the principal author of the Fourteenth Amendment – called the right to vote the source of all institutions of democratic government.
Bingham and other framers of the Reconstruction amendments also knew that a meaningful right to vote requires meaningful enforcement.
Months after ratification of the Fifteenth Amendment, Congress enacted the first Ku Klux Klan Act. Among other things, that Act prohibited interference with the newly protected right to vote, and it authorized the United States Attorneys and marshals to bring criminal actions against anyone who violated the Act’s provisions.
And only a few weeks after that, Congress created the Department of Justice, and President Grant charged it with enforcing the Act and protecting the rights promised by the Fourteenth and Fifteenth Amendments.
Amos Akerman, the first Attorney General President Grant appointed to lead the new Justice Department, zealously sought to protect Black voting rights, directing U.S. Attorneys that it was their “special duty to initiate proceedings against all violators” of the Ku Klux Klan Act. In the next few years, DOJ lawyers successfully prosecuted hundreds of Ku Klux Klan leaders and others. Those efforts helped to secure a brief period of meaningful Black voting rights in some parts of the former Confederacy.
But, the federal commitment to protecting Black voting rights waned as Reconstruction drew to a close.
In 1866, the Supreme Court severely undercut the department’s enforcement efforts by holding that the First Ku Klux Klan Act exceeded Congress’s power under the Fifteenth Amendment.
Between 1890 and 1908, every southern state enacted a new constitution or amended its constitution to exclude Black voters or significantly impede their participation. The courts did not stand in the way, rejecting every constitutional challenge.
And for the next half-century, no branch of the federal government did much to protect voting rights.
That began to change in the late 1950s, when the Justice Department renewed its efforts to protect the right to vote, and the Supreme Court reestablished judicial oversight of the political process.
In 1957, Congress enacted its first major civil rights statute since Reconstruction. The Civil Rights Act of 1957 – based on a legislative proposal first drafted by this department – enabled the creation of DOJ’s Civil Rights Division and authorized the Attorney General to sue to enjoin voter intimidation or racially-discriminatory denials of the right to vote.
The first case against a county registrar for violating the Act, United States v. Lynd, was brought by John Doar, an attorney who served in the Civil Rights Division during the Eisenhower Administration.
By 1963, the department had filed 35 suits challenging discrimination or threats against Black registration applicants in individual counties. But, as Attorney General Robert Kennedy said, that was a “painfully slow way of providing what is, after all, [a] fundamental right of citizenship.”
As the Supreme Court later acknowledged in South Carolina v Katzenbach, in this effort the department was seriously hindered by the burden of bringing case-by-case challenges.
During the same period, the department successfully urged the Supreme Court to revisit its prior unwillingness to enforce constitutional and statutory protections of the franchise.
In Gomillion v. Lightfoot in 1960, the Supreme Court invalidated the infamous gerrymander of the City of Tuskegee, Alabama, which had redefined the City’s boundaries to exclude 99% of the City’s Black population without removing a single white voter.
And in Reynolds v. Sims, four years later, the Supreme Court established the “one-person, one-vote” principle, holding that the Fourteenth Amendment protects the right of each citizen to have an equally effective voice in the political process.
The legislative branch followed the judiciary, and both followed the Civil Rights Movement that swept the country. In 1965, in the wake of Bloody Sunday and based on a record developed in large part by the Civil Rights Division’s litigation, Congress enacted what President Johnson called “one of the most monumental laws in the entire history of American freedom” – the Voting Rights Act.
The Act was reauthorized and signed by President Nixon in 1970, by President Ford in 1975, by President Reagan in 1982, and by President Bush in 2006.
Under the preclearance requirement of that law, DOJ objected to more than one thousand discriminatory voting changes between 1965 and 2006.
But in recent years, the protections of federal voting rights law have been drastically weakened. In 2013, the Shelby County decision effectively eliminated the preclearance protections of the Voting Rights Act, which had been the department’s most effective tool to protect voting rights over the past half-century.
Since that opinion, there has been a dramatic rise in legislative efforts that will make it harder for millions of citizens to cast a vote that counts. So far this year, at least fourteen states have passed new laws that make it harder to vote. And some jurisdictions, based on disinformation, have utilized abnormal post-election audit methodologies that may put the integrity of the voting process at risk and undermine public confidence in our democracy.
The Civil Rights Division has already sent a letter expressing its concern that one of those audits may violate provisions of the Civil Rights Act that require election officials to safeguard federal election records – the very same provisions that formed the original basis for the department’s 1960 investigation in the Lynd case. The division also expressed concern that the audit may violate a provision of the Voting Rights Act that bars intimidation of voters.
As part of its mission to protect the right to vote, the Justice Department will, of course, do everything in its power to prevent election fraud and, if found, to vigorously prosecute it.
But many of the justifications proffered in support of these post-election audits and restrictions on voting have relied on assertions of material vote fraud in the 2020 election that have been refuted by law enforcement and intelligence agencies of both this Administration and the previous one, as well as by every court – federal and state – that has considered them.
Moreover, many of the changes are not even calibrated to address the kinds of voter fraud that are alleged as their justification.
To meet the challenge of the current moment, we must rededicate the resources of the Department of Justice to a critical part of its original mission: enforcing federal law to protect the franchise for all voters.
In 1961, Attorney General Robert Kennedy called into his office the newly appointed Assistant Attorney General for Civil Rights, Burke Marshall; and Marshall’s now First Assistant, John Doar. At that time, before the 1965 Act with its preclearance provision was enacted, 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.
Kennedy told his assistants that was what he wanted to do. “Well General,” Burke Marshall replied, “if you want that, we’ve got to have a lot more lawyers.”
Well, today we are again without a preclearance provision. So again, the Civil Rights Division is going to need more lawyers. Accordingly, today I am announcing that – within the next thirty days – we will double the division’s enforcement staff for protecting the right to vote.
We will use all existing provisions of the Voting Rights Act, the National Voter Registration Act, the Help America Vote Act, and the Uniformed and Overseas Citizens Absentee Voting Act to ensure that we protect every qualified American seeking to participate in our democracy.
We are scrutinizing new laws that seek to curb voter access, and where we see violations, we will not hesitate to act.
We are also scrutinizing current laws and practices in order to determine whether they discriminate against Black voters and other voters of color. Particularly concerning in this regard are several studies showing that, in some jurisdictions, nonwhite voters must wait in line substantially longer than white voters to cast their ballots.
We will apply the same scrutiny to post-election audits, to ensure they abide by federal statutory requirements to protect election records and avoid the intimidation of voters.
In that regard, we will publish guidance explaining the civil and criminal statutes that apply to post-election audits.
And we will likewise publish guidance with respect to early voting and voting by mail.
And because the upcoming redistricting cycle will likely be the first since 1960 to proceed without the key preclearance provisions of the Voting Rights Act, we will publish new guidance to make clear the voting protections that apply to all jurisdictions as they redraw their legislative maps.
Under the supervision of the Deputy and Associate Attorneys General, the department will implement its responsibility under Presidential Executive Order 14019, Promoting Access to Voting. Those include ensuring access to voter registration for eligible individuals in federal custody. They also include assisting other federal agencies in expanding voter registration opportunities, as permitted by law.
We will also work with Congress to provide all necessary support as it considers federal legislation to protect voting rights. Although we will not wait for that legislation to act, we must be clear-eyed: the Shelby County decision eliminated critical tools for protecting voting rights. And, as the President has said, we need Congress to pass S.1 and the John Lewis Voting Rights Act, which would provide the department with the tools it needs.
We will also partner with other federal agencies to combat election disinformation that intentionally tries to suppress the vote.
Finally, we have not been blind to the dramatic increase in menacing and violent threats against all manner of state and local election workers, ranging from the highest administrators to volunteer poll workers. Such threats undermine our electoral process and violate a myriad of federal laws.
The Criminal Section of the Civil Rights Division, together with the department’s National Security and Criminal Divisions, the 93 United States Attorneys, and the FBI, will investigate and promptly prosecute any violations of federal law.
Nearly two and a half centuries into our experiment of “government of the people, by the people, for the people,” we have learned much about what supports a healthy democracy.
We know that expanding the ability of all eligible citizens to vote is the central pillar. That means ensuring that all eligible voters can cast a vote; that all lawful votes are counted; and that every voter has access to accurate information. The Department of Justice will never stop working to protect the democracy to which all Americans are entitled.
In an editorial published after his death, the great John Lewis recalled an important lesson taught by Dr. Martin Luther King Jr.:
“He said each of us has a moral obligation to stand up, speak up and speak out. When you see something that is not right, you must say something. You must do something. Democracy is not a state. It is an act, and each generation must do its part ….”
Thanks to all of your work, the Department of Justice will always stand up to ensure the survival of the central pillar of our democracy. Thank you.