A word to the wise

On Wednesday, the Department of Justice released two documents warning states that they have to follow federal law before, during and after elections. Without naming names, the first set of guidelines generally called out states that have moved to change their election laws to restrict voters’ access to the polls after the 2020 election. The second is focused on the “audit” still taking place in Arizona, along with potential copycats.

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Nowhere in the first document does it explicitly say the department will be targeting state legislators, election officials or anyone else using Trump’s rhetoric to make voting harder. Instead, it just casually points out that several federal laws could be violated in the process of doing so, even if that just involves rolling procedures back to their pre-pandemic standards:

Since the 2020 election, some States have responded by permanently adopting their COVID-19 modifications; by contrast, other States have barred continued use of those practices or have imposed additional restrictions on voting by mail or early voting. In view of these developments, guidance concerning federal statutes affecting methods of voting is appropriate.

The Department’s enforcement policy does not consider a jurisdiction’s re-adoption of prior voting laws or procedures to be presumptively lawful; instead, the Department will review a jurisdiction’s changes in voting laws or procedures for compliance with all federal laws regarding elections, as the facts and circumstances warrant.

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The department has already made clear it is willing to go to court to enforce those laws. Last month, the Justice Department sued Georgia under the Voting Rights Act, alleging that the state’s recently passed election law unfairly targeted minority voters. The guidelines issued Wednesday are a shot across the bow of any states that would like to follow Georgia’s lead.

Even more interesting — and ominous — is the document focused on “Federal Law Constraints on Post-Election ‘Audits.’” (Scare quotes theirs!) In it, the Justice Department reminds readers the 2020 election was “the most secure in American history” and that none of the recounts required under state law “produced evidence of either wrongdoing or mistakes that casts any doubt on the outcome of the national election results.”

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The Justice Department had already warned the Arizona Senate, which approved this farce, that the probe might risk violating federal law. Wednesday’s guidelines are more explicit about what laws might have been broken — and the consequences for breaking them.

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First, it warned that handing over election records to “private actors who have neither experience nor expertise in handling such records and who are unfamiliar with the obligations imposed by federal law” — i.e., Cyber Ninjas, the firm running the show in Arizona — would likely be a violation of the Civil Rights Act of 1960.

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Second, the guidelines stress that intimidation of voters — which a door-knocking scheme could qualify as — is, in fact, super illegal and that intimidation doesn’t have to involve physical threats.

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“Jurisdictions that authorize or conduct audits must ensure that the way those reviews are conducted has neither the purpose nor the effect of dissuading qualified citizens from participating in the electoral process,” the Justice Department wrote. “If they do not, the Department will act to ensure that all eligible citizens feel safe in exercising their right to register and cast a ballot in future elections.”

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Taken together, the two documents can be considered part of Attorney General Merrick Garland’s “f--- around and find out” doctrine on voting rights. (Not that he’d ever call it that.)

  MSNBC

Bill Barr would have.

Garland announced in June that his department will make countering new election restrictions a major priority for the Civil Rights Division. Already this year, 18 states have enacted 30 laws that make voting more difficult, according to the Brennan Center for Justice. Hundreds more bills have been proposed in states across the country. The new guidelines are a sharp promise that any future shenanigans will be met with a swift challenge.

Are these guidance documents enough on their own to stop Republicans' three-step plan to thwart democracy? No: That will require Congress passing new laws to bolster the Justice Department's currently flagging arsenal. But it’s heartening to see that Garland intends to do what he can in the meantime.

And if Congress doesn't get the job done, what Garland can do won't be enough.

...but hey, do what you want...you will anyway.