Shannon Henschel
Associate Editor
Loyola University Chicago School of Law, JD 2024
Voters have been questioning the credibility of elections since former President Donald Trump instilled fear in his supporters by alleging that votes were stolen in the 2020 election. Additionally, Democratic voters have become increasingly wary of voter suppression in Republican counties. As the United States midterm elections approach this year, the Department of Justice (DOJ) will be deploying stringent measures to ensure that counties and states are in compliance with fair voting practices.
The DOJ’s civil rights division has a longstanding history of enforcing federal laws that protect citizens’ rights to vote. These laws include the Voting Rights Act of 1965 and the National Voter Registration Act. These laws are in place to ensure that all voters have a fair and equal opportunity to cast their ballots, and to ensure that they are able to do so without experiencing suppression or discrimination. However, in the last two election cycles, the DOJ has increased voting protection methods by dispatching voting monitors to several states.
Why is monitoring necessary?
In the wake of the highly divisive 2020 elections, there was an eruption of voter suppression bills that were subtly designed to make it harder for certain demographics to vote. The States’ United Democracy Center found that 262 bills of this nature were introduced in 2021, thirty-two of which were passed into law across 17 states. One example of these laws is Florida’s S.B. 90, which imposes constraints on mail-in voting after an election where the majority of black voters mailed in their ballots. Another example is Montana’s H.B. 176, which eliminates election-day voter registration, after many younger voters had been utilizing this policy. The good news is that many of these bills never make it into law, and those that do are often heavily litigated over. However, the emergence of these bills proves the U.S. has a need to protect voters.
The nature of these bills often clearly violate of the Voting Rights Act of 1965 and the National Voter Registration Act. These bills are a reflection of Americans’ distrust in the U.S. election system. Many of these “election integrity” bills are being introduced in Republican states, which may be a reaction to Trump’s bold claims of a stolen election in 2020.
The goals of election monitoring.
Election monitors, or individuals who observe voting polls to ensure integrity, are not used in every state. States that have historically used them within their counties include Michigan, Pennsylvania, Wisconsin, Virginia, North Carolina, Georgia, Florida and Arizona. The DOJ deploys these election monitors to ensure compliance with the Voting Rights Act of 1965 and the National Voter Registration Act. Assuming the DOJ continues with its historical practice, information on the exact states and counties that will have election monitors during the 2022 elections will not be released until the day before the elections. The counties that will have election monitors are chosen largely based on whether they have had a history of voter suppression and whether constituents in those counties draw attention to voting issues.
The primary goal of having election monitors at the polls is to provide immediate attention to issues that may arise on election day, and to have official documentation of them. Potential issues that would need to be addressed include voter intimidation, providing misinformation, or falsely presenting oneself as an election official. Many of these forms of harassment are directed toward non-English speaking voters.
Partisanship issues
The act of protecting voters should not be a partisan issue, and the Department of Justice is working to ensure that they will not appear to politically lean one way or another. This task will be difficult because the Department of Justice has filed lawsuits against many of the states that have enacted “election integrity” bills. This creates the perception that the Department of Justice is retaliating against these Republican states. Attorney General Merrick Garland circulated a staff email that advised Department of Justice employees to remain “particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and non-partisanship.”
While the central goal of election monitoring is to ensure compliance with voter protection acts, a host of other concerns arises when issues of politics are brought into play. While concern over appearing partisan is certainty valid given that the US political landscape continues to be increasingly divisive, the legitimacy of elections is at stake this year. For this reason, strict compliance efforts to ensure that voters are protected is necessary to protect our democracy.