Category Archives: Voting Rights Act

We’ve Issued a Major New Report, “24 for ’24: Urgent Recommendations in Law, Media, Politics, and Tech for Fair and Legitimate 2024 Elections”

absentee ballots, election administration, election subversion risk, The Voting Wars, Voting Rights Act, voting technology

Back in March, the UCLA Law Safeguarding Democracy Project held a conference, Can American Democracy Survive the 2024 Elections?

Following the conference some of the participants met as an ad hoc committee to consider recommendations in law, politics, media, and tech for fair and legitimate elections in 2024. The goal was to convene a cross-ideological, interdisciplinary and broadly diverse group of election experts to consider ways to bolster both the actual fairness of the upcoming elections as well as public confidence in them.

Today, under the auspices of SDP, the 24 members of the Ad Hoc Committee for 2024 Fairness and Legitimacy released a new report: 24 for ’24: Urgent Recommendations in Law, Media, Politics, and Tech for Fair and Legitimate 2024 Elections.

Here are what I see as some of the key takeaways of the report:

  • The United States’ election system continues to be under great stress, especially after the last election was conducted during a pandemic and with unprecedented attacks on the integrity of the election system. There are reasons to worry 2024 could be worse
  • SDP convened a group that is really ideological diverse and is multidisciplinary, with scholars and leaders in law, media, politics and norms, and tech
  • 24 leaders came up with 24 recommendations for fair and legitimate 2024 elections; all of these can be put in place before the 2024 elections
  • Recommendations aimed not only at fair elections but at public acceptance of results across the political spectrum
  • Recommendations made to journalists, social media companies, government bodies, election officials, bipartisan Congressional and state leaders committed to democracy and the general public
  • Among key recommendations: states need to draft laws now to deal with how to handle election emergencies; courts need to resolve as soon as possible challenges to the qualifications of candidates to run for President under the Fourteenth Amendment; news organizations need to invest resources into training journalists on how elections are run, especially local and non-English language news outlets; election administrators need to harden their systems against “insider threats”—the actions of election workers or officials attempting to sabotage results

Below the fold, I share the summaries of the 24 recommendations; full recommendations are in the report itself. In upcoming weeks, we will look for opportunities to share our recommendations with specific constituencies to whom they are addressed.

In early news coverage, Zach Montellaro of Politico writes, “Election Experts Warn American Democracy is ‘Under Great Stress’ Ahead of 2024.” Read the full report for details.

Continue reading We’ve Issued a Major New Report, “24 for ’24: Urgent Recommendations in Law, Media, Politics, and Tech for Fair and Legitimate 2024 Elections” →
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“How the Supreme Court Should Respond to Alabama’s Defiance”

redistricting, Supreme Court, Voting Rights Act

Kate Shaw for the NYT:

Alabama’s appeal confronts the Supreme Court with a profound test. The case may appear to involve a set of technical questions about one state’s legislative map. But it is more fundamentally about whether the Supreme Court should still be viewed as in any sense standing outside politics. Facing a crisis in public confidence, the court should take the opportunity to regain some of its rapidly dwindling legitimacy by sending a clear message that even its ideological fellow travelers do not get a pass from abiding by its rulings.

Alabama’s conduct in this case also reveals just how serious a problem discrimination against Black voters remains — and thus how vital the Voting Rights Act is today. The Supreme Court’s response will thus have implications beyond the bounds of this case — and it will be measured for what it reveals about both the court’s legitimacy and the future of the Voting Rights Act.

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“Alabama Asks Supreme Court to Revisit Dispute Over Congressional Map”

redistricting, Supreme Court, Voting Rights Act

NYT:

Alabama filed an emergency application in the Supreme Court on Monday evening, asking the justices to keep in place for now a congressional map that a lower court had found failed to comply with orders to establish a second majority-Black district or something “close to it.”

The application means that the court is again poised to consider the role of race in establishing voting districts for federal elections, three months after the justices, in a surprise ruling, rejected an earlier iteration of the map that they said had diluted the power of Black voters.

The request for emergency relief came in response to a ruling from a three-judge panel, which found that the Republican-controlled Legislature had most likely violated a landmark civil rights law because it had not drawn a second district aimed at allowing Black voters the chance to elect representatives. Instead, over the objections of Democrats, the Legislature approved a map that increased the percentage of Black voters in one of the state’s six majority-white congressional districts to about 40 percent, from roughly 30 percent….

In seeking emergency relief as an appeal moves forward, Alabama’s attorney general, Steve Marshall, acknowledged that the Legislature had not added a second majority-Black district to its map as dictated by the federal court, but said its new map still complied with the law.

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“Exclusive: How the Supreme Court’s conservatives rebuffed Alabama”

Supreme Court, Voting Rights Act

Must-read Joan Biskupic report for CNN:

When the Supreme Court considered the challenge to an Alabama congressional map that shortchanged the state’s Black voters, liberal justices expected the conservative majority to side with Alabama – if not gut the 1965 Voting Rights Act altogether.

Instead, the justices emerged from their first closed-door conference meeting on the case in October 2022 without a solid majority for either side, CNN has learned. Ordinarily, this meeting, held without any law clerks or other staff present, results in a clear understanding among the nine justices of which party will prevail in a case. In the Alabama dispute, sources said, it was far from certain which side would win.

What happened next defied predictions from inside and outside the court. A series of negotiations, most notably between Chief Justice John Roberts and fellow conservative Justice Brett Kavanaugh, transformed what many thought would be a ruling undercutting the Voting Rights Act into a forceful affirmation of the law.

Roberts and Kavanaugh enjoy a decades-old kinship and often confer privately on matters. Most internal debate takes place among all nine justices, whether in regular closed-door sessions or the circulation of memos. But Roberts regularly reaches out to Kavanaugh behind another set of closed doors to understand his views and, as happened here, to secure his vote.

Ambivalent during early internal debate, Kavanaugh eventually gave Roberts enough confidence that he could write an opinion for a majority.

Kavanaugh has since become the focus of Alabama officials who directly flouted the Supreme Court’s June decision and are now seeking another chance before the court.

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Breaking: Unanimous 3-Judge Federal Court Holds Alabama Defied Supreme Court in Allen v. Milligan, Must Draw Another Minority Opportunity Congressional District

Supreme Court, Voting Rights Act

You can find the unanimous, 217-page opinion at this link. The Court castigated Alabama both for its failure to obey the Supreme Court’s order and for its delay:

We have reached these conclusions only after conducting an exhaustive analysis of an extensive record under well-developed legal standards, as Supreme Court precedent instructs. We do not take lightly federal intrusion into a process ordinarily reserved for the State Legislature. But we have now said twice that this Voting Rights Act case is not close. And we are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said
federal law requires.

We are disturbed by the evidence that the State delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy. And we are struck by the extraordinary circumstance we face. We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district. The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice. The 2023 Plan plainly fails to do so. . . .

We observe that absent relief now, the Plaintiffs will suffer this irreparable injury until 2026, which is more than halfway through this census cycle. Weighed against the harm that the State will suffer — having to conduct elections according to a court-ordered districting plan — the irreparable harm to the Plaintiffs’ voting rights unquestionably is greater. We next find that a preliminary injunction is in the public interest. The State makes no argument that if we find that the 2023 Plan perpetuates the vote dilution we found, or that the 2023 Plan likely violates Section Two anew, we should decline to enjoin it….

The court also unanimously rejected the argument that the Section 2 remedy was unconstitutional, an issue that there was room to argue (given Justice Kavanaugh’s concurrence in Allen v. Milligan):

In contrast, the Voting Rights Act and the Gingles analysis developed to guide application of the statute “do[] not mandate a proportional number of majority-minority districts.” Allen, 143 S. Ct. at 1518 (Kavanaugh, J., concurring). Section Two expressly disclaims any “right to have members of a protected class elected in numbers equal to their proportion in the population.” 52 U.S.C. § 10301(b). And “properly applied, the Gingles framework itself imposes meaningful constraints on proportionality, as [Supreme Court] decisions have frequently demonstrated.” Id. at 1508 (majority opinion). So unlike affirmative action in the admissions programs the Supreme Court analyzed in Harvard, which was expressly aimed at achieving balanced racial outcomes in the makeup of the universities’ student bodies, the Voting Rights Act guarantees only “equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race.” De Grandy, 512 U.S. at 1014 n.11. The Voting Rights Act does not provide a leg up for Black voters — it merely prevents them from being kept down with regard to what is arguably the most “fundamental political right,” in that it is “preservative of all rights” — the right to vote. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1315 (11th Cir. 2019).

But a faulty premise and prematurity are not the only problems with the State’s argument: it would fly in the face of forty years of Supreme Court precedent — including precedent in this case — for us to hold that it is unconstitutional to order a remedial districting plan to include an additional minority-opportunity district to satisfy Section Two. In the Supreme Court, the State argued that the Fifteenth Amendment “does not authorize race-based redistricting as a remedy for § 2 violations.” Allen, 143 S. Ct. at 1516. The Supreme Court rejected this argument in two sentences: “But for the last four decades, this Court and the lower federal courts have repeatedly applied the effects test of § 2 as interpreted in Gingles and, under certain circumstances, have authorized race-based redistricting as a remedy for state districting maps that violate § 2. In light of that precedent . . . we are not persuaded by Alabama’s arguments that § 2 as interpreted in Gingles exceeds the remedial authority of Congress.” Id. at 1516–17 (internal citations omitted).

I expect Alabama will seek emergency relief at the Supreme Court and it will lose. The only real argument Alabama would have following the earlier Supreme Court decision is a constitutional one, and it was barely developed on remand. I expect if Justice Kavanaugh is to eventually entertain it, it would be in a case where the issue was much more fully briefed and developed.

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Parsons, Penrose, and Carroll: “Pico & Proportional Ranked Choice Voting”

alternative voting systems, Voting Rights Act

The following is a guest post from G. Michael Parsons (Senior Legal Fellow, FairVote), Drew Penrose (Policy Consultant, FairVote), and Terrance Carroll (Senior Fellow for Voting and Democracy, FairVote):

The California Supreme Court’s decision in Pico Neighborhood Association v. City of Santa Monica last week was a major victory for voting rights, fair representation, and the essential protections provided by a growing number of state voting rights acts (SVRAs) across the country. In this post, we raise three observations about what the decision might mean for SVRA litigation going forward. First, alternative “modified at-large” electoral systems (such as proportional ranked choice voting) may offer the clearest benchmark for establishing liability in future SVRA cases. Second, the Court’s emphasis on “lawful” alternatives contemplates a range of potential changes to a locality’s electoral system, including eliminating staggered elections or moving to multi-member districts. Finally, proportional ranked choice voting offers a uniquely compelling remedy in SVRA cases because it encourages the kind of crossover voting that the Pico decision protects as a means of providing communities of color a “real electoral opportunity” to elect their candidate of choice.

Continue reading Parsons, Penrose, and Carroll: “Pico & Proportional Ranked Choice Voting” →
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Unanimous California Supreme Court in Santa Monica Case Adopts Compromise Reading of California Voting Rights Act, Remands Case to Appeals Court for Further Proceedings

Voting Rights Act

You can find the opinion here.

The court rejected the plaintiffs’ argument that proof of racially polarized voting in an at-large system was enough to show a violation of the CVRA. The court also rejected the City of Santa Monica’s argument (and a similar argument of the Court of Appeal) that required proof that it would be possible to draw a single-member district in which minority voters constituted a majority or near-majority of voters such that they could elect representatives of their choice.

Instead the court held:

Accordingly, to establish dilution of a protected class’s ability to elect its preferred candidate under the CVRA, a plaintiff must demonstrate “the potential to elect representatives” under some lawful alternative electoral method. (Gingles, supra, 478 U.S. at p. 50, fn. 17.) One way to emonstrate the class’s potential to elect its preferred candidates would be to show, as the VRA requires, that the class ould be “sufficiently large and geographically compact to constitute a majority in a single-member district.” (Gingles, at p. 50.) But that is not the only way. (See Elec. Code, § 14028, subd. (c).) Because the CVRA applies exclusively to nonpartisan elections, where there may be more than two candidates, the winner may prevail with far less than a majority of the vote.

Moreover, the protected class may be able to demonstrate its ability to attract crossover votes for its preferred candidate. Finally, a plaintiff may identify nondistrict remedies that would enable the class, on its own or with the assistance of crossover votes, to elect its preferred candidate. The minority population percentage necessary to win an election under some alternative at-large electoral systems — cumulative or ranked-choice voting, for example — may be less than 25 percent. (See Dillard v. Chilton County Bd. of Education (M.D.Ala. 1988) 699 F.Supp. 870, 874 (Dillard) [“in a jurisdiction with seven seats, the threshold of exclusion[11] would be 12.5% plus” in a cumulative voting system]; Mulroy, The Way Out: A Legal Standard for Imposing Alternative Electoral Systems as Voting Rights Remedies (1998) 33 Harv. C.R.-C.L. L.Rev. 333, 342 [threshold for ranked-choice voting “is identical to that of cumulative voting”].) Determining whether the protected class has the potential to elect its preferred candidate under some alternative system requires a “ ‘functional’ analysis of the political process” in that locality and a “ ‘searching practical evaluation of the “past and present reality.” ’ ” (Gingles, supra, 478 U.S. at pp. 62–63.)

Courts should consider the totality of the facts and circumstances of the particular case (see, e.g., Elec. Code, § 14028, subd. (e)), including the characteristics of the specific locality, its electoral history, and “ ‘an intensely local appraisal of the design and impact’ of the contested electoral mechanisms” as well as the design and impact of the potential alternative system. (Gingles, at p. 79; see Milligan, supra, _ U.S. at p. _ [216 L.Ed.2d at p. 75].) This fact-specific inquiry accords with the legislative understanding that California is a large and diverse state that needs a flexible approach to address our changing demographics…

The key inquiry in establishing dilution of a protected class’s ability to elect its preferred candidate under the CVRA, therefore, is what percentage of the vote would be required to win — an inquiry that is not short-circuited merely because the protected class may fall short of an absolute majority (or something close to that). In predicting how many candidates are likely to run and what percentage may be necessary to win, courts may also consider the experiences of other similar jurisdictions that use district elections or other alternatives to traditional at-large elections. Courts should likewise keep in mind that the inquiry at the liability stage “is simply ‘to prove that a solution is possible, and not necessarily to present the final solution to the problem.’ ” (Pope v. County of Albany (2d Cir. 2012) 687 F.3d 565, 576; see Gingles, supra, 478 U.S. at p. 50, fn. 17.)

The court then remanded for the Court of Appeals to apply this new standard as well as reach other arguments it did not reach on the first round of appeals.

The bottom line for the CVRA: these cases are going to be somewhat harder to bring than plaintiffs would want, but much easier to win than cases under the federal Voting Rights Act.

As to what happens in Santa Monica ultimately, it is too early to say. But the potential for getting rid of the city’s at-large system still seems like a real possibility.

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Announcing the Fall Webinar Series for UCLA Law’s Safeguarding Democracy Project (Each event free but registration required)

election subversion risk, Supreme Court, Voting Rights Act

Very excited to announce this lineup for the Safeguarding Democracy Project’s Fall 2023 webinar series (each event free but registration required):

September 5, 12pm-1pm – The Trump Indictments, the 2024 Elections, and Public Peace

From left: Ruth Ben-Ghiat, Benjamin Ginsberg, and Rachel Kleinfeld

Webinar

Registration Link: https://ucla.zoom.us/webinar/register/WN_p4L4pEu-RcOYmR3rbFLnHw#/registration

September, 26, 12:15pm-1:15pm – How Should Platforms Handle Election Speech and Disinformation in 2024?


From left: Josh Lawson and Yoel Roth

Room 1327 and Online

  • Josh Lawson (formerly of Meta)
  • Yoel Roth (formerly of Twitter)
  • Moderated by Richard L. Hasen

Registration Link: https://ucla.zoom.us/webinar/register/WN_9pcF3qvMR1ebPY_pb6Du6w 

October 12, 12pm-1pm – The Roberts Court and American Democracy

Webinar

Joan Biskupic

Joan Biskupic (CNN Legal Analyst and author)

  • Moderated by Richard L. Hasen

Registration link: https://ucla.zoom.us/webinar/register/WN_sQx5cHNWRfyl-fD0lOQyTg

October 17, 12:15pm-1:15pm – The Trump Prosecutions, the First Amendment, and Election Interference

From left: Genevieve Lakier, Eugene Volokh

Room 1457 and Online

Registration Link: https://ucla.zoom.us/webinar/register/WN_zKe2CTK-QbuY6Co4tk7UrA 

November 16, 2023 12pm-1pm – Covering the Risks to Elections on the State and Local Level: Views from the Beat Reporters

Clockwise from top left: Jonathan Lai, Carrie Levine, Patrick Marley, Yvonne Wingett Sanchez, and Pamela Fessler

Webinar

Registration Link: https://ucla.zoom.us/webinar/register/WN_2bOEy9VuSMqgTa2gxVDbjg

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Alabama Attorney General Praises State Legislature for Defying the Supreme Court in Not Drawing District Required by the Voting Rights Act

Supreme Court, Voting Rights Act

Alabama Daily News:

The Supreme Court upheld a ruling by a lower state court that ordered Alabama lawmakers to adopt a new map that either created two majority-Black districts, or “something quite close” to it. Instead, the Legislature approved a map with just one majority-Black district, with the next-highest Black-majority district having just under 40% of voting-age Black voters….

Attorney General Steve Marshall was also present at the Republican meeting, and expressed his thanks to the Republican-led Legislature for, at least temporarily, protecting a Republican-held congressional seat.

“I very much value the Legislature and the work that they did in this last session; it would have been very easy for them just to back down and believe they had to do something that they didn’t believe right,” Marshall said.

“Let’s make it clear, we elect a Legislature to reflect the values of the people that they represent, and I don’t think anybody in this room wanted this Legislature to adopt two districts that were going to guarantee that two Democrats would be elected.”

Marshall said that his office was looking forward to the newly-adopted map being litigated in a federal court hearing next week.

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Brandon Johnson: “Election Aggrandizement”

legislation and legislatures, Supreme Court, Voting Rights Act

The following is a guest post from Brandon Johnson, who begins as an Assistant Professor at the University of Nebraska on August 14:

The Supreme Court received praise for two election law decisions issued in the waning weeks of its October 2022 term. In Allen v. Milligan  and Moore v. Harper, Chief Justice Roberts authored majority opinions rejecting arguments that would have further defanged the Voting Rights Act and removed state constitutional constraints on state legislatures’ abilities to regulate federal elections. Advocates, scholars, and commentators expecting far more conservative outcomes reacted positively to these opinions. The New York Times even cited these cases in an article claiming that this term reflected a chastened, less partisan Court. Some scholars, like Rick Hasen, however, cautioned that the majority opinions in both Milligan and Moore, were not the big liberalwins they were portrayed as in the media.

What has gone largely unexplored in all of this debate, however, is the way in which these two cases are consistent with a growing trend in politically charged Roberts’ Court decisions—namely, the Court’s attempts to aggrandize its own power by inserting itself into ever increasing swaths of state and federal policy. In an apparent break with earlier Roberts’ court election law decision—which had taken steps towards limiting the role of the federal courts in reviewing state election laws—both Milligan and Moore arrogate to the Court significant authority to single-handedly reshape state election laws. The discussion below examines this overlooked aspect of the cases.

Continue reading Brandon Johnson: “Election Aggrandizement” →
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“Plaintiffs in high-profile redistricting case urge judges to toss out Alabama’s controversial congressional map”

redistricting, Voting Rights Act

CNN:

In a late-night court filing Friday, the NAACP Legal Defense & Educational Fund and multiple attorneys asked a three-judge panel to direct an official to devise a new map that complies with the 1965 Voting Rights Act.

The plaintiffs in the case said legislators who drew and approved the maps didn’t comply with a court mandate to create a second congressional district where Black voters have an opportunity to elect their preferred candidates.

Jonathan Cervas tweets some highlights of the brief, including its argument that the Alabama plan “raises serious constitutional concerns due to strong evidence it was drawn with the purpose of discriminating against Black Alabamians…”

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“A Black prosecutor was elected in Georgia – so white Republicans made their own district”

Voting Rights Act

The Guardian reports on a different kind of circuit split:

Since 1870, the Augusta judicial circuit has been home to the criminal justice system of a three-county area on Georgia’s border with South Carolina. In that time, no African American has been elected district attorney of the circuit – until 2020, when a Black lawyer named Jared Williams upset a conservative, pro-police candidate with just more than 50% of the vote.

But that historic win was short-lived. The day after his election, a lawyer and state lawmaker in the area proposed something unusual: that the circuit’s whitest county separate itself from the Augusta circuit, creating a new judicial circuit in Georgia for the first time in nearly 40 years…

The split caused the disenfranchisement of the old circuit’s Black voters, voting advocacy organization Black Voters Matter Fund contended in a lawsuit that was eventually dismissed by the state supreme court. Those voters had chosen Williams, who ran on a pledge to uphold criminal justice reforms such as not prosecuting low-level marijuana possession, a crime which disproportionately affects Black and minority communities.

Instead of Williams, Black voters in Columbia county got as their prosecutor Bobby Christine, a Trump-appointed US attorney who was appointed by the Republican governor, Brian Kemp. Christine then chose Williams’s opponent as his chief deputy.

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“Inside Alabama Republicans’ plan to overturn Section 2 of the Voting Rights Act”

redistricting, Voting Rights Act

Alabama Political Reporter:

The decision by Alabama Republican legislators to seemingly defy a Supreme Court directive to redraw congressional voting maps with a second majority-Black district was part of a larger strategy intended to force the high court to rehear the entire case and strike down Section 2 of the Voting Rights Act altogether, according to numerous sources familiar with the plan. 

The sources, who spoke to APR on condition of anonymity, were all either present during discussions of the plan or consulted with those who were. They described a plan concocted by D.C.-based attorneys and championed by Alabama Attorney General Steve Marshall and other ALGOP officials. That plan is rooted in the belief that the Supreme Court never seriously considered the merits of Alabama’s case, particularly in regards to upending Section 2, but instead limited its ruling to only the merits of the stay issued by the lower federal court. 

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