On Jan. 6, 2021, millions watched, horrified, as agitators hellbent on overturning the election results and disenfranchising Black and Brown voters staged an insurrection on the Capitol, fueled by demonstrably false allegations of voter fraud. While there are clear problems with our democracy and voting systems that must be fixed, these issues don’t arise from voter fraud. They are instead the legacy problems of our republic: systematic efforts to erect voting barriers and discriminate against voters of color for political gain. The Biden Administration has a real opportunity to restore faith in our democracy and move us closer to an electoral system representative of all Americans.
The Supreme Court’s 2013 Shelby v. Holder decision and the halting of preclearance requirements have emboldened states and localities to enact discriminatory voting laws without the Department of Justice’s oversight, resulting in an increase in racially discriminatory laws that suppress the vote. And right now, after record voter turnout in 2020 and the electoral defeat of Donald Trump, states across the country are generating a new wave of such legislation that can be passed without crucial federal protections.
For example, proposed legislation in Georgia — the state that determined control of the Senate — would roll back voter modernization in the state, requiring an excuse to vote absentee and undoing automatic voter registration. Proposals in Georgia, Pennsylvania and Virginia would prohibit the use of secure ballot drop boxes. Lawmakers in Arizona have introduced 19 new restrictive voting laws, including a purge of the state’s permanent early-voting list. Many more examples exist.
This latest assault on our democracy must be met with robust action and widespread vigilance, and the Biden Administration has tools at its disposal. The Biden Administration must work with Congress to pass the John Lewis Voting Rights Advancement Act to root out voting barriers built to discriminate against voters of color. Congressional leaders named this legislation in honor of the late civil rights legend, but the real honor to his memory would be the bill’s enactment.
More immediately, the ACLU will call on the incoming U.S. attorney general to designate an assistant U.S. attorney (AUSA) in each of the 94 U.S. attorney offices across the country to help ensure compliance with federal voting laws. This cadre of Justice Department lawyers would augment the force of the team of attorneys in the Voting Section of the Civil Rights Division in Washington, D.C. The severity of the challenge demands a major response. After the tragic events of Sept. 11, 2001, Attorney General Ashcroft required each U.S. attorney to appoint an AUSA as a point person on anti-terrorism. Jan. 6 and the broader, ongoing anti-voter actions are an attack on our democracy, and we must respond forcefully now too. These AUSA designations would be a clear signal from the Biden Administration that it takes the threat of voter suppression as a serious, systematic issue for our democracy.
While tearing down barriers to the ballot, the Biden Administration should also ensure all eligible Americans in their custody are able to exercise their right to vote and provide voter-registration information and services as part of release. The Department of Justice and Federal Bureau of Prisons (BOP) should take affirmative steps to ensure eligible voters are not being stripped of their rights because they are incarcerated. Stripping the right to vote from and limiting voting opportunities for people in the criminal justice system is directly rooted in the suffocating racism of the Jim Crow era and began as a direct blowback from the ratification of the 13th, 14th and 15th Amendments to end slavery and enfranchise Black men.
More than 10,000 people in BOP custody, the vast majority of whom are people of color, may be eligible to vote under current laws and would have the opportunity to vote with assistance from the Biden Administration. Approximately 7,000 of this group are D.C., Vermont and Maine residents. These jurisdictions have a universal right to vote but that right exists only in theory unless those incarcerated people are offered adequate opportunities to exercise it. Another several thousand people are being held in pretrial detention — those who have only been charged, and have yet to see their due process — may also be eligible to vote.
Further, once released from custody, many people have their right to vote restored, but often don’t know they can legally cast a ballot. Information should also be provided to those who will remain ineligible to vote while on supervised release, clarifying that their rights will not be restored until supervision is complete. This information gap is created by both the varying and confusing laws from state to state and the lack of affirmative education on those rights. If BOP were to consistently provide information regarding voter eligibility and registration upon release, it would help close that information gap and invite thousands of newly eligible voters into the process over the next four years.
The 2020 election proved that racism-fueled voter suppression is alive and well. The deep racist, historical roots of targeting voters of color have persisted and grown; indeed, even a deadly pandemic provided no reprieve in the assault on voting rights. Instead, the opponents of voting rights have further proved their unrelenting desire to discount the ability of people of color to choose their elected officials, vying instead for a corrupted system in which politicians choose their voters. As John Lewis said in an op-ed published after his death, “The vote is the most powerful nonviolent change agent you have in a democratic society.” We must empower Americans to vote and, by doing so, restore faith in our democracy.
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