Carrying on a long-established tradition, the U.S. Justice Department (DOJ) plans to deploy teams of federal observers around the country on Election Day next month while requiring the FBI to receive high-level approval for politically sensitive investigations that might call into question the integrity of the election.
At stake in the Nov. 8 congressional races is not only control of Congress but also the legitimacy of U.S. elections — fallout from former President Donald Trump's attempt to undo the outcome of the 2020 presidential vote.
Many Americans are questioning the credibility of elections. At the same time, new laws passed by Republican state legislators have thrown up barriers to voting, rights advocates say, prompting the Justice Department to challenge the new measures in court.
The Justice Department, which under the Biden administration has made voting rights a central plank of its law enforcement agenda, says federal monitors will observe the midterm elections in an effort “to ensure that all qualified voters have the opportunity to cast their ballots and have their votes counted free of discrimination, intimidation and suppression."
"The Civil Rights Division undertakes its important work to protect the right to vote all throughout each year, and this year's work continues longstanding department tradition," the Justice Department said in a statement Tuesday.
The U.S. has a decentralized election system, with voting administered at the county level.
But the federal government has a role too. The Justice Department's civil rights division is responsible for enforcing a string of federal laws designed to protect the right to vote. These include the Voting Rights Act of 1965, the National Voter Registration Act, and the Uniformed and Overseas Citizens Absentee Voting Act.
Federal election monitors, drawn from the Justice Department's civil rights division as well as U.S. attorney's offices across the country, will observe compliance with these laws, according to the Justice Department.
In the past two election cycles, the Justice Department dispatched election monitors to about 20 states. It is likely to cover the same number of states this year, according to Sylvia Albert, director of voting and elections at the watchdog group Common Cause.
"I've been given no indication that they are going to stray greatly from prior behavior, and they told us that they are continuing to do their job as they've always done," Albert said.
The locations to be monitored are determined based on whether "they have a history of problems and voters or community groups in the area making them [the DOJ] aware," Albert said.
"You always use the institutional knowledge, the history of the location, any complaints from voters and voter advocates to monitor," Albert said.
The Justice Department releases its election-monitoring plan on the eve of the midterms. A representative did not have any additional details about the department's monitoring plan beyond the press statement.
Zack Smith, a legal fellow at The Heritage Foundation, said the Justice Department observers play an important role in ensuring equal access to voting.
“Their goal is to really be kind of a quick reaction force if issues come up to us to potentially address those issues in real time," Smith said.
In addition to the Justice Department monitors, the Organization for Security and Cooperation in Europe (OSCE), of which the U.S. is a participating state, will deploy observers throughout the country to "closely monitor all aspects of the elections, including pre- and postelection developments."
"The mission will assess the elections for their compliance with OSCE commitments and other international obligations and standards for democratic elections, as well as with national legislation," the OSCE said in a statement Sept. 29.
Staying above politics
While taking steps to protect the right to vote, the Justice Department is keeping up another of its long-standing traditions: avoiding the appearance of partisanship during an election year.
In a May 25 staff email entitled "Election Year Sensitives," Attorney General Merrick Garland urged Justice Department employees to be "particularly sensitive to safeguarding the Department's reputation for fairness, neutrality, and non-partisanship."
"Simply put, partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigation or criminal charges," Gartland wrote.
The exhortation was a mere restatement of long-standing DOJ policies. But to the outrage of many on the left, Garland went on to say that he was keeping in place a 2020 directive issued by his predecessor, William Barr.
The Barr directive says the FBI must get the attorney general's written approval before opening criminal or counterintelligence investigations of "politically sensitive individuals or entities."
Garland’s decision to extend that policy gave fodder to critics who say he hasn't moved aggressively enough to charge Trump and his associates for their alleged roles in the events leading up to the Jan. 6 Capitol riot.
But the attorney general has said that "no person is above the law" and that the Justice Department "will follow the facts and the law, wherever they lead."
Garland is a former federal judge and Supreme Court nominee. Defenders say he has restored the Justice Department's traditional role as an independent law enforcement agency after four years of the Trump administration, during which the attorney general was accused of doing the president's bidding.
But Republicans say that it is under Biden that the Justice Department has become politicized. They point to the FBI's unprecedented investigation of Trump's handling of presidential records as well as Justice Department lawsuits filed against "election integrity" laws enacted by Republican state lawmakers.
"I think there certainly is the perception, if not the reality that there's a disconnect between what Merrick Garland is saying and what the department is actually doing," Smith said.