The Department of Justice’s recent plea to the Supreme Court to allow voters in Arizona to apply for absentee ballots without documented proof of citizenship is one of several instances of the Biden administration wading into state-level election battles ahead of the 2024 election.
The DOJ has also pushed this year for more lenient mail-in voting rules in Ohio and Alabama, and it brought a lawsuit to add more Spanish-speaking poll workers in Rhode Island.
The department’s involvement in state election matters is not new — the government has since the 1960s had jurisdiction to enforce the Voting Rights Act. The civil rights-era legislation was designed to make sure black citizens had an equal ability to vote. The DOJ also has for decades had other federal laws at its disposal, such as the National Voter Registration Act.
However, during the Biden administration, the DOJ has become more vocal about elections and made a concerted effort to expand access to voting, an entirely opposite approach from the Trump administration. The activity aligns with Democrats’ broader claims that Republicans want to make voting harder, which Democrats claim can disenfranchise voters or discriminate against racial minorities.
Chad Ennis, a longtime attorney and vice president of the Honest Elections Project, observed that Democrats’ push for more voting access threatens election integrity.
“They’ll couch it in under the guise of expanding voting rights, but it’s really, almost without fail, an attack on common sense rules to help make sure the elections run smoothly and fairly and accurately,” Ennis told the Washington Examiner.
Republicans, for their part, have since 2020 had a heightened concern about voter fraud. In the last presidential election, when former President Donald Trump narrowly lost his race, the defeat came after many states loosened their voting laws on an emergency basis in the name of COVID-19.
Trump largely drove his party’s anxieties about the election, refusing to admit he lost and attributing the discrepancy to the emergency rule changes and alleged widespread voter fraud. He routinely decried the election as “rigged” and “stolen.” He conflated his grievances about election laws with the unverified fraud claims. A riotous mob of Trump supporters breached the Capitol in the midst of Congress’s election certification, and many participants have since seen legal consequences. The courts also did not buy Trump’s fraud allegations and tossed out every lawsuit his lawyers brought over them. The DOJ later embraced its legal momentum and brought a sweeping four-felony indictment against Trump on charges that his attempts to challenge the election results were illegal. However, in a sign that the department overplayed its hand, the case has significantly unraveled.
Since the chaos of 2020, Democrats have frequently criticized Republicans for being “election deniers” and wanting to make voting harder. Republicans, such as Gov. Brian Kemp (R-GA), often counter that they want to make it “easy to vote but hard to cheat.”
‘Tearing down election safeguards’ in Arizona
The Republican National Committee and other groups asked the Supreme Court this month to halt a lower court’s decision to prohibit a voting requirement in Arizona related to illegal migration.
The RNC’s request, which the high court could respond to at any time, is an effort to combat noncitizens voting in a critical battleground state that has been ravaged by illegal border crossings.
The GOP is seeking to allow Arizona to require applicants for absentee ballots to provide documentation of their citizenship. The DOJ, the Democratic National Committee, Arizona Democrats, and some Hispanic voting groups oppose the lawsuit and have argued the form the applicants fill out requires them to check off under penalty of perjury that they are a citizen.
Solicitor General Elizabeth Prelogar argued in a court filing it violated the NVRA, noting that the law’s purpose is to “simplify” voter registration and address “concerns that ‘discriminatory and unfair registration laws’ can ‘have a direct and damaging effect on voter participation.’”
Ennis said that a mere checkbox could, however, invite mistakes or falsehoods.
“We know how people sometimes fill out forms, either by accident … sometimes, we’ve seen this in states, that the box doesn’t get checked. People still get registered because of clerical errors,” Ennis said. “So, requiring documented proof of citizenship is not a big deal. If Arizona wants to do it, they should be able to do it.”
His group, the Honest Elections Project, filed an amicus brief in the case that is at odds with DOJ’s position.
Gineen Bresso, the election integrity director for the RNC and Trump campaign, blasted President Joe Biden and Trump’s opponent, Vice President Kamala Harris, for misplaced priorities, saying they have ignored the illegal migration crisis at the border and instead “focused on tearing down election safeguards and making it easier for non-citizens to decide our elections.”
“It is illegal for non-citizens to vote, and Arizona should be allowed to enforce the law,” Bresso told the Washington Examiner in a statement. “The RNC’s emergency application in the Supreme Court – supported by 24 state Attorneys General – is fighting for proof of citizenship for this election. We are committed to the fundamental principle that American elections be decided by Americans.”
The DOJ declined to comment for this story.
Competing priorities
The Trump DOJ was also involved in election litigation, but its priorities were different than that of the Biden administration and its activity was less frequent and much quieter.
The Trump DOJ, for example, participated in about 30 cases, which included protecting military members’ ability to vote and addressing problems with voter rolls, according to department records.
Under Biden and Harris, the DOJ has pursued more than four dozen cases for a wide array of reasons, which have included stripping away restrictions on absentee ballots in multiple states. In some cases, the department’s interests have also supported military ballot access.
But some activity differs from that of the Trump administration. The DOJ, for example, told a court as part of a lawsuit in June that Alabama’s voting laws violated the VRA because they prohibited a person from submitting another person’s absentee ballot in most cases. The DOJ argued this would negatively affect handicap people or people who cannot read.
Alabama vehemently disputed that stance and said its state law carved out appropriate exceptions for such voters.
“Alabama would be powerless to safeguard disabled voters from manipulation by convicted fraudsters, foreign agents, and self-interested candidates. That cannot be right,” the Alabama attorney general’s office wrote.
The differing priorities between the administrations underscore the divide ahead of the 2024 election, in which Republicans want to see a tightening of state laws and strong enforcement of them and Democrats remain wary of disenfranchisement and want to make it as easy as possible for people to vote.
House Speaker Mike Johnson (R-LA) drilled down on this point in a call with reporters Tuesday night, saying he has campaigned in more than 170 cities across the country and that the matter is Republican voters’ greatest concern, particularly when it comes to noncitizens voting.
“I can tell you the first or second question in every single public forum, no matter where I am in the country, is about election security,” Johnson said. “And people are deeply concerned that illegals are going to participate in this election cycle and throw off the results, and we can’t tell them with any degree of confidence that that’s not going to happen.”
Since the focus on election integrity has intensified, Attorney General Merrick Garland has also taken a particular interest in alleged threats to poll workers by creating a task force and implementing federal monitoring practices during elections.
Ennis said his group is focused on making sure rules are followed and that the election is “clean,” but he said Garland’s concern about threats is also valid, albeit overemphasized.
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“I think they really exaggerate the extent of it if you look at a lot of their backup material,” Ennis said. “You’ll see that multiple FOIA requests to an election office was harassment, but it’s really taking a definition of harassment and expanding it.”
He added that “when you take the definition of harassment to someone asking legitimate questions about how an office is run, it’s going a bit far.”
