Merrick Garland Must Muster the Bluster if We Can't Bust the Filibuster | Opinion

Call me a skeptic, but I am not optimistic that we will see meaningful voting rights legislation pass Congress, largely due to the fact that there will not be a Democratic majority ready to overturn or meaningfully reform the filibuster rule. Given the number of Republican controlled states, many of which are crucial swing states, that have passed laws looking to suppress voter participation, and even more significantly enable Republican legislators to undermine election administration and the integrity of voting tabulations, we are staring at a grave threat to American democracy.

As the Big Lie that the 2020 election was stolen has grown from Donald Trump being unable to admit defeat, to a foundational litmus test for Republican candidates seeking elective office, it is incredibly worrisome that what the Republican Party is actually up to is making sure they have a legal basis, as set forth in a slew of newly passed state laws, to manipulate election results and their certification.

In other words, in perpetuating the lie that the last election was stolen, these states have put in place laws that would aid and abet Republicans stealing future elections.

There seems to be support from the two key Democratic senators who have become the bottleneck to passage of anything in the 50/50 Senate, Senators Manchin and Sinema, for legislation that would both overturn state attempts to limit voter participation and override state attempts to invite partisan manipulation of the administration of elections. The problem is, it is not apparent at all that either of those Senators, and maybe others, will support an exception to the filibuster rule for voting rights as an antidote to the Big Lie, or otherwise change the filibuster rule to enable the Democrats to pass federal election legislation that not a single Republican will endorse. While states and municipalities administer federal elections, they do so under federal standards to which they must conform, yet the Democratic will to overcome the filibuster to make sure these federal standards disallow these recent red state election statutes, at least as of now, does not seem to be there.

The result, of course, is that there are a number of Republican controlled swing states that would be allowed to conduct elections in 2022 and 2024 without the federal guardrails necessary to protect against a Republican party primed to steal elections they would not otherwise win.

Merrick Garland Speaks at a Press Conference
U.S. Attorney General Merrick Garland speaks during a press conference at the Robert F. Kennedy Main Justice Building on November 08, 2021 in Washington, DC. Garland announced his department is suing Texas alleging a breach of the Voting Rights Act. Chip Somodevilla/Getty Images

So, what can be done in the absence of congressional action? First of all, nothing can substitute for Democrats doing a far better job communicating to the electorate the positive case for entrusting Democratic majorities going forward. Cleary, the Democrats have a long way to go on that front. Moreover, the current efforts to gerrymander districts in an even more extreme way than is already the case, presents an even greater hurdle to Democrats being able to retain their congressional majorities. Yet, the answer cannot be to stand down and allow state legislators to run roughshod over any semblance of integrity in our electoral process.

The answer lies with the Justice Department. There are very clear federal laws presently on the books that provide a formidable basis for prosecuting state government officials of any sort, be they state legislators, state secretaries of state, or country election commission officials, who attempt to fraudulently manipulate any election with federal candidates on the ballot. All the necessary prosecutorial authority is provided in 18 U.S. Code, Section 595 setting forth prison sentencing for any "person employed... by any state... or any political subdivision or municipality or agency thereof... [that] uses his official authority for the purpose of interfering with, or affecting... the election of any candidate for the office of President... Presidential elector, Member of the Senate, Member of the House." Armed with this statutory election policing mechanism, the Justice Department should make very clear, well before the 2022 congressional elections, that it plans to vigilantly prosecute any state, county, or municipal actor who attempts to interfere with the expression of popular will as evidenced by an accurate and fair election count.

The concerning issue is that the Garland Justice Department appears to be remarkably passive in its pursuit of election fraud. Former President Trump in a recorded conversation that could not provide more clear evidence of attempted election fraud tried to push Brad Raffensperger, Secretary of State of Georgia, to "find" the precise 11,780 votes he would need to win the state—and yet, no Justice Department investigation seems to have been opened around this matter. Trump's threatening phone calls to Raffensperger are clear violations also of 52 U.S, Code Section 20511, which provides up to five years of prison for any person who "deprives, defrauds or attempts to deprive or defraud the residents of a state of a fair and impartially conducted election process."

The lack of DOJ action here does not create, as of yet, great confidence that the Attorney General will be sufficiently aggressive in using existing federal laws to meaningfully scare state lawmakers through the threat of prison time from attempting to use these newly enacted state election law provisions to overturn election results. It's very simple: If Congress will not bust the filibuster rule in order to preserve the most important pillar of democracy—free and fair elections—then the Justice Department needs to muster some real bluster to instill some major fear of prosecution in any state official who believes they can manipulate election results with impunity.

The philosophy expressed in the Justice Department handbook "Federal Prosecution of Election Crimes" is extremely deferential to state enforcement of election practices. However, in light of all the bad faith state election law changes over the last year, the presumption that the states can be relied on in any way to be effective enforcers of election integrity has to be thrown out the window.

As former Michigan Republican Party chairman Jeff Timmer told the Washington Post, "The officials who fulfilled their legal duty after the election are now being replaced by people who are pledging to throw a wrench in the gears of the next election. It tells you they are planning nothing but chaos and that they have a strategy to disrupt the certification of the next election."

A stark pronouncement that the Justice Department will fiercely pursue any hint of state legislators or local election officials attempting to change election results based on fabricated evidence and lies or fraudulently inserting themselves into election determinations must be clearly established in this current off-year congressional cycle. If it is not firmly established that state and local officials will face federal enforcement and jail time for their actions when the Biden Justice Department can clearly follow through with those prosecutions over the next two years, all deterrence will be lost. Timing here is critical; if the Justice Department does not get serious with the kind of heavy-handed pronouncements intended to instill fear in state officials about the seriousness of its intent to prosecute state officials, doing so in 2024 may be too late. Come January of 2025 we may have a second Trump presidency orchestrated through fraudulent election manipulation and his newly reconstituted Justice Department will surely not follow through with those prosecutions. Given the recent DOJ suit against Texas for racial discrimination in its latest gerrymander plan, there is reason to hope Garland is willing to be aggressive here.

Once the Democrats are finished with the Build Back Better reconciliation legislation, all eyes will turn to the issue of voting rights. Even if by some chance the Democrats do have the will to bust the filibuster in this critical area, it will be well into 2022 before the law will pass, and there will be many court challenges to the federal legislation that may well stand in the way of any new federal election statute taking effect before next November. Thus, it is absolutely vital, based on law already on the books, that the Justice Department come out strongly and make apparent its plans to aggressively pursue and vigilantly prosecute any and all attempts to fraudulently undermine the 2022 elections.

We must keep our republic and protect it against the poison of authoritarians who have already put in place a complete state law apparatus of election theft.

Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chair of Engine Gaming & Media and is former senior counsel to a congressional committee.

The views in this article are the writer's own.