Partisan, political, designed to inflame. That’s what Merrick Garland’s recent speech on voting rights was. It certainly was not objective, measured and deliberate – the kind of speech you expect from an attorney general.
What’s worse, his central assertion – that state efforts to improve the integrity of the election process will make it "harder" for eligible citizens to vote – is demonstrably false.
Garland’s speech started to go off the rails when he talked about the 2013 Supreme Court decision in Shelby County v. Holder, which he said "drastically weakened" voting rights protections. It did not.
That decision left untouched the most important parts of the 1965 Voting Rights Act, including Section 2 – a permanent, nationwide ban on racial discrimination in voting. Garland’s Justice Department can use Section 2 to fight voting discrimination wherever it occurs. (Fortunately, such discrimination is so rare these days that, in eight years, the Obama administration filed only four cases alleging voting discrimination under Section 2 – a fact Garland neglected to mention.)
What the court did in Shelby County was end the preclearance provisions of Section 5 that required a very small number of states and local jurisdictions – like Alabama and Georgia – to get the Justice Department’s approval before making any changes in their voting laws. Section 5 was meant to be only a temporary provision, addressing what was happening in 1965.
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The Supreme Court ended the preclearance requirement because, unlike Garland, it recognized that time had not stood still – that "nearly 50 years later, things have changed dramatically." Systematic, widespread voting discrimination had disappeared. Voter registration and turnout rates among Black and White residents in Section 5 states showed no statistically significant disparities.
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Garland went on to claim that since the Shelby County decision, there has been a "dramatic rise in legislative efforts" to restrict voting. Yet the states correctly say those same efforts are meant only to protect voters by enhancing the security of their elections.
Who to believe? Well, census data clearly don’t support Garland’s claim. The Census Bureau’s 2020 election survey reports that last year’s election logged "the highest voter turnout of the 21st century."
That’s right, seven years after the Shelby County decision and the passage of state election laws that Garland finds so restrictive, 66.8% of voting-age citizens turned out to vote – just short of the all-time turnout record turnout (67.7%) set in 1992. Moreover, polls consistently find that most voters, no matter their race or party preferences, support the so-called "restrictive" measures, such as voter ID laws, viewing them as common-sense reforms.
Garland also criticized the election audits currently being conducted in various jurisdictions. He charged, without offering examples or evidence, that the auditors are using "abnormal post-election audit methodologies that may put the integrity of the voting process at risk and undermine public confidence in our democracy." It is more likely that the exact opposite is true.
Every election jurisdiction in the country should conduct post-election audits, and Garland should encourage them, not try to stop them.
Election audits, just like the routine audits conducted in the business world, are intended to ensure that election rules and procedures were complied with and that voting equipment functioned correctly. The intent is to identify and remedy any problems that may have occurred in last year’s election and to instill greater public confidence in our democracy, not to diminish it.
Take, for example, the ongoing audit in Windham, New Hampshire, that uncovered a serious problem in local voting machines misreading absentee ballots. The miscounted ballots did not change the outcome of the election, but without the audit, local officials would not have known they had a problem that needs to be fixed before the next election.
Indeed, every election jurisdiction in the country should conduct post-election audits, and Garland should encourage them, not try to stop them.
Garland’s bizarre claim that these "audits may violate provisions" of federal voting laws is simply wrong. As J. Christian Adams and Maureen Riordan, both former career attorneys inside the department’s Voting Section, recently told the Arizona legislature, "Conducting an audit of a past election does not violate the Voting Rights Act or any other federal law."
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In fact, they noted, "the Justice Department has never – in the entire history of the existence of the Civil Rights Division – interfered in or investigated an election audit because its past leadership has understood it has no legal authority to do so." Garland’s criticism has no basis in the law and appears intended to scare off audits that might find problems that many liberals don’t want revealed.
Garland promised that over the next 30 days he will double the staff of the Voting Section because he "need[s] more lawyers" to deal with all of these alleged problems. With little to no evidence of actual voting discrimination, this partisan public relations ploy would simply be a waste of taxpayer money.
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