Category Archives: Voting Rights Act

“A GOP power grab shatters 30 years of political progress for Black voters in Galveston County “

Texas Tribune reports that “Republicans dismantled the only Galveston County commissioners precinct in which voters of color held political clout.”

“Carver Park in Texas City, created during segregation, is considered the first African American county park in the state. It sits on land donated by descendants of freedmen who survived slavery and pioneered one of Texas’ oldest Black settlements, the footprint of which sits just a few blocks away.

Until last year, the park sat at the heart of Galveston County’s Precinct 3 — the most diverse of the four precincts that choose the commissioners court, which governs the county along with the county judge. Precinct 3 was the lone seat in which Black and Hispanic voters, who make up about 38% of the county’s population, made up the majority of the electorate.

. . . .

But the white Republican majority on the Galveston County’s commissioners court decided last November to dismantle Precinct 3. Capitalizing on its first opportunity to redraw commissioner precincts without federal oversight, the court splintered Black and Hispanic communities into majority-white districts.

Under the final map, which will be used for this year’s election and possibly for a decade, white voters make up at least 62% of the electorate in each precinct, though the county’s total population is only about 55% white. Because white voters in Galveston — like Texas generally — tend to support different candidates than Black and Hispanic voters, the map will effectively quash the electoral power of voters of color.”

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VRA’s Effectiveness & Impact of Judicial Nullification of Preclearance

New research exploring impact of 1965 Voting Rights Act finds it reduced income inequality between Blacks and Whites. Since Shelby County v. Holder (2013), counties previously covered by Section 5 the VRA saw a decrease in public sector wages for Black workers relative to wages for white workers. The impact appears as early as five years after the decision. By contrast, between 1950 and 1980, counties subject to pre-clearance experienced larger reductions in the Black-white wage gap.

“The VRA was able to empower Black families economically—decreasing the wage gap by a statistically significant 5.5 percentage points—because it changed the political preferences of politicians.”

“[S]ection five increased turnout from 1968 to 1980 by 6.5 to 11.5 percentage points per election, with a jurisdiction’s turnout increasing by 2% for every 10% increase in its population share that was Black.”

The authors emphasize black political participation resulting from VRA influenced the political choices made by politicians. Avenancio-León and Aneja’s papers, “The Effect of Political Power on Labor Market Inequality: Evidence from the 1965 Voting Rights Act” and “Disenfranchisement and Economic Inequality: Downstream Effects of Shelby County v. Holder” can be accessed respectively at this link and this link.

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“Stealing the Crown Jewels: Justice Alito purports to place the future of abortion in the hands of women voters—despite abetting the disenfranchisement of Black and Latina women”

Sherrilyn Ifill for the NYRB:

Since then, Black women have had to overcome an accelerating and complex array of voter suppression schemes, which have proliferated with alarming speed. Even as the Dobbs draft circulates, the ability of Black and Latina women to vote—and have their votes counted—is in peril as a result of voter suppression laws passed in states including Georgia, Texas, and Florida. Those laws are being challenged by civil rights groups in litigation unlikely to be fully resolved before this year’s midterm congressional and state elections.

Black women voters have proved incredibly resilient, leading record turnout for the Democratic base in the 2020 presidential election and in the Georgia special election in 2021. Black voters stood in line for nine hours in Fulton County, Georgia, in the 2020 presidential primary, during some of the worst days of the pandemic. Their patriotism and determination were rewarded by the Georgia Republican Party with a new set of voter suppression laws, including one section that criminalizes giving water or refreshments to voters standing in line.

That law and additional elements of newly enacted voter suppression laws are also the subject of lawsuits brought under Section 2 of the Voting Rights Act. But those challenges will not be evaluated using the standard for reviewing claims under Section 2 that has been in place for more than forty years, because last summer, in Brnovich v. Democratic National Committee, Justice Alito himself announced a new and more restrictive test for evaluating claims under Section 2 that runs roughshod over the test articulated by Congress and used effectively for decades by lower courts. Justice Elena Kagan, writing in dissent, described his majority opinion as a “law-free zone.” He doesn’t seem to mind. Just a month ago, the Court allowed a flagrantly racist gerrymander, which had been painstakingly detailed in a 234-page decision by a federal trial court in Alabama, to go forward for this year’s midterm elections. The Court announced that decision on the “shadow docket”—its portfolio of presumably temporary emergency orders decided without a full opinion by the Court, and without full briefing or oral argument by the parties.

All of these decisions have made it harder for Black women to exercise the electoral power Alito suggests is their recourse to secure abortion access. When Alito purports to place the future of abortion in the hands of women voters, he is denying the stark political disenfranchisement of Black and Latina women that the Court itself has abetted. To which women, then, is he referring?

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Analysis: Eleventh Circuit Blocks Preliminary Relief in Florida Voting Case, Saying There Wasn’t Evidence Florida Enacted Its Law with Racially Discriminatory Intent and Blocking Preclearance for Florida’s Voting Laws

Back in March, I wrote about a “blockbuster” ruling of a federal district court that not only found some of Florida’s restrictive voting laws illegal; it also found that Florida enacted them with racially discriminatory intent. That finding allowed the court, under section 3 of the Voting Rights Act, to put Florida back under federal supervision for its voting laws.

As audacious as that opinion is, I expected reversal, as did the district court in its own opinion. I wrote: “but there is good reason to believe that this case could be reversed on appeal by the much more conservative 11th Circuit or the Supreme Court. Indeed, the district court seems to signal that very early in the case that the appellate courts have stopped meaningfully protecting minority voting rights.”

Today that ruling came, as a panel of three Trump-appointed judges reversed the preliminary injunction in the case. It’s only a ruling on a preliminary injunction and it could be reversed later down the line, but I doubt it.

Much of the ruling is about timing, and application (or misapplication) of the Purcell Principle, the idea that courts cannot make last minute changes close to the election. The ruling here vastly expands the already bad Purcell principle to cover larger swatches of time. It’s become a way for conservative judges to allow bad and unconstitutional laws to remain in effect for at least one election cycle.

Even worse than that, the ruling applies a “presumption of good faith” to defeat the claim of intentional discrimination against Florida. This is another Justice Alito Special, a way to prevent courts from finding intentional racial discrimination when legislatures pass voting laws. I explained how it and related laws insulate states from such claims in The Supreme Court’s Pro-Partisanship Turn, 109 Georgetown Law Journal Online 50 (2020).

The only good news: according to the first footnote, this ruling on a preliminary injunction has no precedential effect in the 11th Circuit. But it DOES telegraph what these judges think about protecting voting rights. Which is, not much.

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The Conservative Case for Proportional Representation

In the wake of New York’s redistricting decision this week, Washington Post columnist Henry Olsen urges Congress to reach a bipartisan agreement to end gerrymandering and offers three ways to do that. All three deserve attention, and I suspect that for something to pass Congress it would need to embrace a federalism-based approach by which states could choose from a menu of options (like Olsen’s three anti-gerrymandering alternatives) to achieve a congressionally-determined objective.

But here I want to highlight the third of Olsen’s three proposals: invoking Switzerland as “model” for how to “elect House members by proportional representation.” I can’t recall a comparably prominent conservative voice promoting so forcefully the idea of using PR in the US. Am I forgetting something similar?

As Olsen indicates, Congress could jump-start state-based experimentation with PR for congressional seats simply by repealing its statutory (not constitutionally required) single-member district requirement. Given Senator Mitch McConnnell’s aversion to imposing new congressional mandates on states even for the conduct of congressional elections, pursuit of proportional representation could be advanced by doing the opposite: removing a congressional constraint that already exists. McConnell ought to be in favor of giving states the option of using PR for their congressional delegation, if that’s what states prefer. I can imagine Ohio, after its current redistricting debacle, becoming the first state to explore this way to avoid being a national embarrassment again.

Thus, is there a deal to be had among congressional Republicans and Democrats to repeal the single-seat district requirement and give states the freedom to experiment with PR? I would expect a deal like this might be more attractive to Democrats when they consider what the Supreme Court might decide in the pending Alabama redistricting case. If the Court adopts the argument advanced by Alabama in its recently filed merits brief, it’s not going to be constitutionally permissible for Congress to enact a revised Voting Rights Act that would enable single-member districts to be drawn to enhance the relative voting power for racial minority groups (comparable to what minority voting power would exist in districts drawn without consideration of race). The only constitutionally permissible way to pursue proportional political power for minority voters would be through a race-neutral across-the-board system of proportional representation, in which minority voters would be able to elect candidates and parties of their choice in proportion to their numbers in the state’s whole electorate.

Repealing the single-member district requirement would require some measure to prevent a state, whether Alabama or any other, from simply electing all its congressional seats in at-large first-past-the-post statewide elections, which obviously would not be proportional representation and would cause severe minority vote dilution. But a new Act of Congress that permitted states to abandon single-member districts if they adopted a Swiss-style, or some other, form of statewide proportional representation for their congressional delegation? That might be the best way to protect minority voting power, as well as avoiding gerrymandering, given the current Supreme Court and the need for bipartisan compromise for anything to pass Congress.

In light of Olsen’s column, is pursuing this kind of bipartisan deal worth further exploration?

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Travis Crum: Shaw and the City

The following is a guest post from Travis Crum:

The 2020 redistricting cycle is well under way. As in past cycles, redistricting suits have targeted statewide maps. That makes sense, as the stakes are higher and voting rights litigation is costly, time intensive, and complex. But in this post, I want to focus on redistricting at the local level. In particular, I highlight the potential for Shaw claims being brought against city- and county-level redistricting plans.

Under Shaw’s racial gerrymandering cause of action, if race predominates during the redistricting process, then the challenged district must survive strict scrutiny. Shaw claims first emerged in the 1990s as a tool to dismantle majority-minority districts. In the 2010s, Democratic and Black plaintiffs flipped the doctrine on its head and used it against districts that packed Black voters in the South. I’ve predicted in a recent article that, in the 2020 cycle, Democratic Party backed plaintiffs may seek to use Shaw against crossover districts to further spread out minority voters without endangering the constitutionality of Section 2 of the Voting Rights Act—that is, because Section 2 does not mandate the creation of crossover districts.

So why might Shaw be relevant at the local level? To put it bluntly, the redistricting process in many cities is an intra-party fight that breaks down along racial lines. Here’s two examples from major cities this cycle.

Continue reading Travis Crum: Shaw and the City
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Florida: “DeSantis-sanctioned congressional map passes after Black lawmaker sit in”

WaPo:

The Florida House gave final passage to a new congressional map blessed by Gov. Ron DeSantis (R) that favors Republicans in as many as four U.S. House seats and erases a seat held by a Black Democrat following a dramatic, last-minute sit-in by state Democrats, many of them Black.

The map, which passed the state Senate on Wednesday, was drawn by DeSantis’s staff after the governor refused to accept any version that didn’t eliminate the 5th Congressional District that stretches along the northern border and was configured mid-decade to give Black voters a chance to elect a candidate of their choice. The district is currently represented by Democratic Rep. Al Lawson.

The protest began as a Black lawmaker continued speaking after she was told her time had expired. State Rep. Yvonne Hinson (D) was discussing the history of the Voting Rights Act when her microphone was cut, causing other members to yell at in anger at her being silenced. They chanted “We will not be denied,” sang “We Shall Overcome” and bowed their heads in prayer. The session went into recess.

The final congressional map, which will now be signed by DeSantis, is the result of a months-long stand off between the governor and members of his own party who had been working on a bipartisan map that would not have dramatically changed the makeup of the congressional delegation.

But, with the process well underway, DeSantis, under pressure from far-right conservatives, including former President Trump adviser Steven K. Bannon, announced he wanted a map that better advantaged Republicans, including the erasure of Lawson’s district.

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“Wisconsin Supreme Court adopts legislative maps drawn by Republicans”

Milwaukee Journal-Sentinel:

The Wisconsin Supreme Court embraced a redistricting plan crafted by Republican state lawmakers Friday, three weeks after the U.S. Supreme Court threw out election maps drawn by Democratic Gov. Tony Evers.

States must draw new election maps once a decade after each census to make sure legislative districts have equal populations. Where the lines go can confer advantages on one political party.

Evers and Republicans who control the Legislature couldn’t agree on new maps, so it fell to the state Supreme Court to decide on the districts. In a 4-3 ruling last month the justices picked Evers’ maps, which had a Republican tilt to them even though they were drawn by a Democrat. …

In Friday’s 4-3 ruling, the justices picked maps drawn by Republican lawmakers and explained why they now believed the state should not take race into account when drawing maps in Milwaukee. 

The Republican maps reduce the number of Assembly districts in Milwaukee with Black majorities from six to five. 

Democrats or their allies are likely to challenge those maps in federal court on the grounds that they don’t comply with the Voting Rights Act. With the election approaching so quickly, such a challenge may have to wait until after this fall’s elections. 

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“DeSantis draws congressional map that would dramatically expand GOP’s edge in Florida”

NBC News:

Florida Gov. Ron DeSantis proposed a new congressional map that would create four more Republican-leaning districts and wipe out Democrats’ national redistricting advantage.

The map — which would carve up a Black-held district — was released Wednesday afternoon, just days after state legislators said they would defer to DeSantis, a Republican, on the new congressional boundaries. The Republican-controlled Legislature drew maps that would have created less of a GOP advantage, but DeSantis vetoed them last month.

DeSantis’ map would create 20 Republican seats and eight Democratic ones based on 2020 electoral data, according to Matthew Isbell, a leading Florida-based Democratic data consultant who analyzed the maps Wednesday evening. Florida’s congressional delegation consists of 16 Republicans and 11 Democrats in the House. The state was apportioned an additional House seat after the 2020 census.

“It’s so blatantly partisan,” Isbell said. “The only way you can create a 20-and-8 map … was to basically say, ‘Screw Black representation.’”

A top Republican in the Legislature agreed privately, saying the maps were probably drawn with partisan intent by DeSantis — a potential 2024 GOP presidential candidate who is up for re-election this year.

DeSantis has said his administration is complying with the law, which prohibits partisan gerrymandering….

Daniel Smith, a political science professor at the University of Florida who studies elections, said DeSantis appeared to be inviting lawsuits. The map “is clearly being drawn to challenge the remaining provisions of the Voting Rights Act that the Supreme Court has not struck down,” he said….

While the Republican-controlled Florida Legislature had advanced maps that would have slightly advantaged Republicans, DeSantis sought significant gains for his party; in particular, he demanded that legislators dismantle largely Black congressional districts and argued that the North Florida district that ran from Tallahassee to Jacksonville, represented by Al Lawson, a Black Democrat, was an unconstitutional racial gerrymander.

“We are not going to have a 200-mile gerrymander that divvies up people based on the color of their skin,” DeSantis said Tuesday at a news conference in Miami. “That is wrong. That’s not the way we’ve governed in the state of Florida. And obviously that will be litigated.”

DeSantis’ map would dissolve the seat, the state’s 5th Congressional District, into several Republican districts. It would also water down the African American voting population in another district with a significant number of Black voters, currently represented by Senate candidate Val Demings of Orlando. That would leave the state with just one majority Black voting district.

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“Grumet: See you in court? For abortion, yes. Voting rights, maybe not.”

Bridget Grumet column in the Austin American-Statesman:

Funny. I thought our state leaders wanted regular Texans to help enforce the important stuff.

Like that time Gov. Greg Abbott urged “members of the general public” to call ChildProtective Services to report any young person receiving gender-affirming medical care.

Or that time the Legislature deputized private citizens to become abortion bounty hunters,u sing the mere threat of costly civil lawsuits to upend access to reproductive services.

Or the new push — one of Lt. Gov. Dan Patrick’s top priorities for the next legislative session— for a bill to chill discussion of LGBTQ issues in classrooms by empowering people to sue school districts over lessons they dislike.

Yes, dear Texans, the courthouse doors are wide open to you when it is time to fight the culture wars. In fact, our state leaders are counting on your litigious spirit! But when it comes to the most fundamental issue in our civic space — our right to access fair elections, free of discriminatory policies or manipulated maps — well, those same Republican officials would rather slam the courthouse doors in your face.

In defending lawsuits over our state’s redistricting maps, plainly drawn to drown out the voices of Black and brown Texans who fueled much of our state’s population growth, the office of Texas Attorney General Ken Paxton has taken the stunning position that individual shave no standing to sue under Section 2 of the Voting Rights Act. Simply because they’re individuals. 

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“Texas is quietly using redistricting lawsuits to launch a broader war against federal voting rights law”

Alexa Ura for the Texas Tribune:

Beyond the immediate legal fight over whether Texas lawmakers again discriminated against voters of color when drawing new political districts, a quieter war is being waged that could dramatically constrict voting rights protections nationwide for years to come.

For decades, redistricting in Texas has tracked a familiar rhythm — new maps are followed by claims of discrimination and lawsuits asking federal courts to step in. Over the years, Texas lawmakers have repeatedly been ordered to correct gerrymandering that suppressed the political power of Black and Hispanic voters.

The pathway to federal court has been through the Voting Rights Act. Key portions of the landmark law have been weakened in the last decade, but Texans of color still find a way to file lawsuits under its Section 2, which prohibits discriminatory voting procedures and practices that deny voters of color an equal opportunity to participate in elections.

Those protections are the vehicle being used by voters and various civil rights groups to challenge political maps for Congress and the state legislature drawn by Texas Republicans in 2021 to account for population growth. In what promises to be a protracted court fight, Texas will defend itself against accusations that it discriminated — in some cases intentionally — against voters of color.

But tucked into the legal briefs the state has filed with a three-judge panel considering the redistricting lawsuits are two arguments that reach far beyond the validity of the specific maps being challenged.

First, the Texas attorney general’s office is arguing that private individuals — like the average voters and civil rights groups now suing the state — don’t have standing to bring lawsuits under Section 2. That would leave only the U.S. Department of Justice to pursue alleged violations of the act, putting enforcement in the hands of the political party in power.

Second, the state argues that Section 2 does not apply to redistricting issues at all.

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Travis Crum: “Bailing in the Sunshine State”

The following is a guest post from Travis Crum:

Bail-in is back in the news. In a behemoth 288-page decision in League of Women Voters of Florida v. Lee, a federal district court found that Florida intentionally discriminated against Black voters when it enacted SB 90, a 2021 bill that placed restrictions on third-party voter registration organizations, the use of drop boxes, and line-warming activities, such as providing food and water in a non-partisan fashion. That ruling alone is remarkable given how reluctant courts are to find discriminatory intent. But Chief Judge Mark Walker went farther and imposed “bail-in” relief.

For those unfamiliar with bail-in, Section 3(c) of the Voting Rights Act authorizes federal courts to place States and political subdivisions under preclearance for violations of the Fourteenth and Fifteenth Amendments. As I have argued since before Shelby County invalidated the VRA’s coverage formula, Section 3(c) provides a court-centric and constitutional approach to re-imposing federal oversight of State and local voting changes. Here’s a few key takeaways from the opinion and some thoughts on what’s to come:

  1. The Discriminatory Intent Finding. The court spends nearly 100 pages canvassing SB 90’s enactment and Florida’s history of racial discrimination in voting. In particular, the court showed how the Big Lie infected the legislative process and that SB 90 was “inten[ded] to restructure Florida’s election system in a way that favor[s] the Republican Party over the Democratic Party.” Moreover, the above-referenced provisions of SB 90 were enacted “to target Black voters because of their propensity to favor Democratic candidates.” Thus, the court’s approach strongly resembles the North Carolina voter-suppression case, where discriminatory intent was found because the legislature specifically targeted Black Democrats’ access to the ballot.
  2. The Bail-in Standard. We now have the most thorough and assertive explication of bail-in in the post-Shelby County era. Relying on the Jeffers factors developed in the Arkansas bail-in, the court concluded that bail-in is appropriate because of Florida’s recent and repeated violations and because it would prevent future violations that Florida would likely commit. In addition, the court drew on South Carolina v. Katzenbach’s endorsement of preclearance over case-by-case litigation in situations where litigation has proved costly and time-intensive and when the jurisdiction has shown a willingness to change tactics. Indeed, the court pointed to SB 524—a bill that recently passed the Florida legislature and currently awaits Governor DeSantis’s signature—as evidence that Florida wants to play a game of whack-a-mole. As the court noted, SB 524 “repeal[s] some of SB 90’s most obviously unconstitutional provisions and introduce[s] new regulations on the franchise.” This type of animus laundering has proven successful in the past, and bail-in was intended to be a prophylactic against such conduct.
  3. Targeted Bail-in That Sunsets. The court crafted its relief to the constitutional evil at hand. Specifically, the court ordered preclearance solely for laws that are tainted by SB 90: namely, regulations on third-party voter registration organizations, drop boxes, and line-warming activities. Thus, SB 524 would have to be precleared, but this order does not apply to the congressional redistricting plan that Florida must still pass. The court limited its relief to ten years, which is common in bail-in suits. Florida is therefore required to preclear a far smaller number of laws for a shorter period of time than under the old preclearance regime.
  4.  Florida’s Counterarguments. The court observed that the parties briefly addressed the bail-in issue. The plaintiffs’ arguments merited only five pages of straight-forward reasons why bail-in is appropriate. For its part, Florida merely noted that bail-in was triggered only if there was intentional discrimination, which, it asserted, had not occurred. Florida put forward no argument that it did not statutorily qualify for bail-in if the predicate invidious intent were to be found. To be sure, Florida included the following footnote in its brief, which I quote here in full: “This assumes that Section 3(c) is a constitutional delegation of authority to the judiciary. There are significant federalism and dual sovereignty concerns that arise under Section 3(c). Section 3(c) also appears to be an improper delegation of authority under Article I, § 4 of the U.S. Constitution.” This does not an argument make. Under rules of waiver, a footnote is oftentimes insufficient to preserve an argument. To the extent this is an argument, it’s a curious one.

Florida appears to be gesturing to a non-delegation argument in the vein of Schechter Poultry. But the VRA is no sick chicken. Congress clearly authorized courts to impose preclearance following a violation of the Fourteenth or Fifteenth Amendment—a standard that easily satisfies the intelligible principle standard. Furthermore, bail-in resembles the type of equitable oversight for constitutional violations that courts have long practiced, with the school desegregation cases being the most prominent example.

Relatedly, Florida claimed that Section 3(c) may somehow be an unconstitutional delegation under the Elections Clause. This argument confuses the independent state legislature theory with Congress’s power to preempt state laws under that clause. The ISL theory concerns whether state statutes and constitutions can re-allocate power to other branches of the state government. Here, by contrast, Congress has stepped in to impose oversight. And it is on this point that Chief Judge Walker engaged with Florida’s argument. The court noted that the Elections Clause grants Congress broad power to preempt state laws. That’s true—but only for federal elections and SB 90 applies to federal and state elections. This, then, brings me to the last glimmer of an argument made by Florida.

Florida also mentioned “federalism and dual sovereignty” concerns that are more akin to the usual arguments against preclearance. Here, one should keep in mind that even Texas has—not once but twice—lacked the chutzpah to argue that Section 3(c) is facially unconstitutional. For reasons why bail-in is a constitutional exercise of Congress’s Reconstruction Amendment enforcement authority, see here and here.

4.        Florida Exceptionalism. This is the first time since Shelby County that a court has ordered bail-in of a State, as opposed to a county or city. But it was not the first attempt. As I’ve canvassed elsewhere, a friendly panel of the Fourth Circuit balked at bailing-in North Carolina after finding that its voter-suppression law was enacted with discriminatory intent, thereby averting a showdown with the Supreme Court over Section 3(c). Likewise, the three-judge district court in the 2010 Texas redistricting saga pointed to the perceived hostility of the Roberts Court to preclearance. By contrast, the Fifth Circuit let Texas off scot-free for its racially discriminatory voter ID law after it enacted a slightly more expansive version while under the threat of litigation.

Bail-in was clearly warranted in those cases. So what makes this one different? Although the opinion is measured and deliberate in its imposition of bail-in, it is striking for its unabashed defense of democracy and racial equality in its introduction and conclusion. Indeed, in an era where we too often see “virtue” signaling from conservative judges auditioning for promotions with snark and the endorsement of previously off-the-wall arguments, it is in many ways refreshing to see a judge go to bat for the right to vote. But this also comes with risks in the inevitable appeal.

5.         What Comes Next. Florida will find a far more receptive audience on appeal. The more interesting question is not if—but how—this decision gets reversed. I agree with Nick Stephanopoulos’s view that the discriminatory intent finding will likely be rejected by the Eleventh Circuit and/or the Supreme Court. Although that factual finding should be protected by the clear-error standard, that impediment has not stopped courts in the past. Moreover, the Court’s recent decision in Brnovich shows that it is still willing to accept anti-fraud rationales for laws notwithstanding their undeniable partisan and racial valence. And if that’s the case, then we may yet again see the Supreme Court avoid opining on Section 3(c).

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Breaking: Federal District Court Strikes Down Restrictive Florida Voting Rules, Imposes Requirement That Florida Submit Certain Voting Changes to Court for Preclearance Under Section 3(c) of Voting Rights Act Upon Finding of Intentional Discrimination; Appeal Likely

Quite a blockbuster ruling from the federal district court. The court found that in enacting certain election laws limiting registration outreach and the use of drop boxes, Florida violated the Voting Rights Act. The court also found that Florida acted intentionally discriminating against the state’s black voters. And although the parties hardly briefed it, the Court imposed a very strong remedy of requiring that certain changes in voting rules in Florida be precleared before the court for a period of 10 years under section 3c of the Voting Rights Act.

This is a huge deal, and the district court’s analysis is probably right, but there is good reason to believe that this case could be reversed on appeal by the much more conservative 11th Circuit or the Supreme Court. Indeed, the district court seems to signal that very early in the case that the appellate courts have stopped meaningfully protecting minority voting rights:

In so ruling, this Court recognizes that the right to vote, and the VRA particularly, are under siege. See, e.g., Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, No. 4:21-cv-01239-LPR, 2022 WL 496908, at *2 (E.D. Ark. Feb. 17, 2022) (dismissing a “strong merits case” that Arkansas had, to the detriment of Black voters, racially gerrymandered seats in the Arkansas House of Representatives under the theory that no private right of action is available under section 2 of the VRA); Merrill v. Milligan, 142 S. Ct. 879 (2022) (staying, without explanation, order enjoining racially gerrymandered congressional maps); Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2351 (2021) (Kagan, J., dissenting) (“Today, the Court undermines Section 2 [of the VRA] and the right it provides.”); Shelby Cnty., Ala. v. Holder, 570 U.S. 529 (2013) (gutting the VRA’s preclearance regime).

Federal courts must not lose sight of the spirit that spurred the VRA’s passage. In June 1965, Martin Luther King Jr. wrote a letter to the New York Amsterdam News urging Congress to pass the VRA. In it, he wrote that “to deny a person the right to exercise his political freedom at the polls is no less a dastardly act as to deny a Christian the right to petition God in prayer.” Martin Luther King Jr., Let My People Vote, The Atlantic, https://tinyurl.com/2sfx63u4 (last visited Mar. 22, 2022). Federal courts would not countenance a law denying Christians their sacred right to prayer, and they should not countenance a law denying Floridians their sacred right to vote.

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