US Justice Department steps up efforts to avoid election mayhem

WASHINGTON — The U.S. Justice Department is ramping up for November’s presidential election as it weighs in on voting rights fights, investigates threats, and prepares to resume briefings with social media companies aimed at curbing the spread of misinformation.

U.S. officials are seeking to avoid the chaos and violence that followed the 2020 election. Deputy Attorney General Lisa Monaco on Friday called on American lawyers to help with “a whole-of-nation response” to protect democracy from a variety of threats.

“As we prepare to cast ballots here in America, our own democracy is being tested — including by an increasingly polarized political landscape and an alarming increase in threats of violence to public officials,” Monaco said at an event in Chicago hosted by the American Bar Association.

Monaco’s speech caps a string of recent developments across the department’s election-related activities. Earlier this week, U.S. intelligence and law enforcement officials briefed reporters on looming foreign and domestic threats to the election and Attorney General Merrick Garland addressed election security in a prime-time televised interview.

Although it’s common for the Justice Department to play a role in elections, events following the 2020 poll — when Donald Trump tried to enlist the DOJ’s help in overturning the results — still loom large. Republicans are hunting for signs of the Biden administration putting a thumb on the scale as Trump makes another run for the White House.

“Any time the DOJ gets involved, it’s entirely predictable that one political party will attempt to spin DOJ engagement as partisan and as improper electioneering, even when it’s not,” said Loyola Law School professor Justin Levitt, a former senior official who served in the department’s civil rights division during the Obama administration.

Garland is a member of President Joe Biden’s Cabinet and top Justice officials are appointed by the White House. However, much of the department consists of civil servants not appointed politically. Many have served during the Trump and Biden administrations.

Additionally, Justice Department officials and attorneys are barred from taking action to benefit a political party and advised to be careful to avoid even the appearance of bias. Even when a presidential candidate is the incumbent, their campaign, not DOJ, represents them in ballot contests and other legal activity.

Polling data suggest the electorate is anxious. When asked how much they trust the election and its aftermath will be free from violence, half of U.S. swing-state voters said “not much” or “not at all,” according to a Bloomberg News/Morning Consult poll conducted July 24-28.

Judges in back-to-back rulings last month in Ohio and Mississippi endorsed positions that DOJ lawyers had taken in cases with stakes for how Americans can vote and how ballots are counted. In several cases this year, DOJ lawyers have found themselves on opposite sides from the Republican Party, which is pursuing litigation across the country in partnership with Trump’s reelection campaign.

The department’s lawyers have defended counting mail ballots that arrive after Election Day in Mississippi and the rights of persons with disabilities in Ohio and Alabama to choose who assists them with voting. In Georgia, DOJ has backed challenges to the state’s shorter timeline for requesting absentee ballots and a requirement that voters use a pen to sign applications for mail ballots.

The voting section of the civil rights division has jumped into other cases this year that don’t involve major political parties, broadly supporting the right of private parties to enforce federal voting and civil rights laws. Last month the DOJ filed a statement in New Hampshire in support of plaintiffs who sued over robocalls that faked President Joe Biden’s voice.

The U.S. government isn’t a party to those cases, but the Justice Department can submit briefs on issues related to the interpretation of federal laws or intervene in a constitutional challenge.

Megan Keenan, a staff attorney with the American Civil Liberties Union’s Voting Rights Project, said DOJ’s voting rights lawyers provide “credible perspective that courts take seriously.” Keenan represents plaintiffs in the Ohio disability rights case.

T. Russell Nobile, a senior attorney with the conservative advocacy group Judicial Watch who previously worked in the civil rights division’s voting section, called the department’s more recent submissions “posturing” and “arguably statements of feelings not interest.” Nobile represents one of the plaintiffs in the Mississippi absentee ballot case and said they plan to appeal.

In the Mississippi case, a judge rebuffed challenges to state law allowing absentee ballots postmarked by Election Day to be counted if they arrive within five days. The RNC has also announced that they would appeal and take the fight to the 5th U.S. Circuit Court of Appeals, historically a more receptive venue for conservative legal causes.

Asked about DOJ’s approach to election-related cases this year, a spokesperson for the civil rights division declined to comment. The department has publicly available guidelines that lay out criteria for when attorneys can parachute into cases with statements of interest and friend-of-court briefs, including the government’s interest in the issue, the level of the court hearing the case, and the potential reach of the outcome.

Managing public perception of the department’s work heading into the election will be tricky, particularly if the department follows the rules against speaking publicly about pending investigations, said Levitt, the former official who now teaches law at Loyola.

The department’s “role is head down, eyes on the facts and the law, and just let the nonsense swirl,” Levitt said.

Meanwhile, Justice Department and FBI officials plan to resume giving regular threat briefings to social media companies in the coming weeks, according to a July report from the agency’s inspector general. The briefings were stopped due to a court injunction, which the Supreme Court reversed in June.

The inspector general recommended officials develop a public and strategic approach to sharing information “in a manner that protects First Amendment rights to combat foreign malign influence directed at US elections.”

In an interview with NBC that aired this week, Garland said the fate of U.S. democracy is potentially at stake in this year’s election. “I can say that America’s elections are the most secure on the planet and everybody has to accept that if our democracy is going to survive,” Garland said.