Attorney General Ken Paxton of Texas went to court on Wednesday to try to stop county leaders in San Antonio from sending out more than 200,000 voter registration applications to unregistered residents of Bexar County.
The lawsuit by Mr. Paxton followed a letter he sent days earlier warning Bexar County officials, most of whom are Democrats, against proceeding with the mailing. The county’s governing commissioners voted 3 to 1 on Tuesday to approve the proposal anyway.
Mr. Paxton has also threated to sue Harris County, which includes the Democratic stronghold of Houston, where officials have been weighing a similar effort to expand the number of registered voters ahead of the registration deadline early next month for the November election.
The suit is the latest chapter in a yearslong conflict over voting and elections in Texas between Republicans, who dominate state government, and Democrats, who control most of the state’s largest urban areas.
Category Archives: Voting Rights Act
ELB Book Corner: Kareem Crayton: “HBCU’s and Election Integrity” (in Zelizer/Greenberg Volume)
I am very pleased to welcome to ELB Book Corner three contributors to the edited volume, Our Nation at Risk: Election Integrity as a National Security Issue (Julian E. Zelizer & Karen J. Greenberg eds. NYU Press 2024). The third contribution is from Kareem Crayton:
The election integrity discourse is a nuanced one, since the concept invokes different meanings depending on the audience. Put bluntly, advancing policies under the banner of election integrity often is viewed as subtly endorsing voter suppression for some communities. Assuring a secure and reliable election is critical to our democracy, of course. Yet when those policies consistently interfere with the casting of eligible votes, the intention (even a good faith one) is lost amidst the obvious effects — especially when those burdened are communities of color and in the institutions that serve them. Viewing the experiences of Historically Black Colleges and Universities (HBCUs) with election integrity proposals vividly illustrates why these policies ought to be considered according to both intentions and their effects.
HBCUs have a rich cultural legacy. For decades, they have been the exclusive site for educating African Americans for much of the country’s history. Approximately 100 HBCUs exist representing around 3% colleges and universities in the United States. But they are also responsible for a fifth of the country’s Black college graduates each year.
Part of the HBCU legacy in America are the unsavory episodes confronting government interference with the right to vote. These educational institutions figure prominently in many of the well-known chapters of voting rights battles. In Gomillion v. Lightfoot, for example, the Alabama legislature redrew the city of Tuskegee into a 28-sided gerrymandered figure that intentionally excluded most Black residents in and around Tuskegee University. Part of the state’s aim was to insulate itself from the influence of black votes — even where Black people a majority of voters.
While civil rights legislation including the 1965 Voting Rights Act improved participation and representation in these communities, the experience with suppression is by no means a relic of the past. The combined effect of demographic shifts along with the Court’s trend of weakening civil rights protections has ushered in an era of state election integrity policies that have imposed new burdens on communities in and around HBCUs. Policies like voter ID rules, the disruption of polling place allocation, and voter harassment and intimidation at the ballot box all stem from election integrity concerns that also tend to ignore or minimize their decidedly negative impact on communities of color, specifically on HBCUs. Some examples:
Gerrymandering: The North Carolina legislature’s preferred legislative district map in 2014 included borders that ran right down the main street of North Carolina A&T’s campus in Guilford County. The map located portions of the university and its residents in a district separate from their neighbors. Neither official representing the two districts prioritized issues relevant to the university and neither of them lived in Guilford County. This gerrymandering complicated political organizing and distanced the community from the local, attentive representation that was in place before the redrawing.
Polling Place Allocation: In Georgia’s 2022 elections during Stacey Abrams historic run for Governor, Morehouse College and Spelman College students were met with overwhelmed and confused poll workers who announced that many were no longer assigned to vote at the local campus polling station — the place where they had voted in the past. These changes occurred without notice and the veneer of making management decisions about polling places tended to overlook the expectations that college students would vote on campus. According to reports, many of the young voters left without sufficient guidance on how to identify the correct location. Similarly, early voting sites were removed from Prairie View A&M’s campus in Texas, focusing students (a huge share of voters in the county) to travel long distances in the to vote.
Political Harassment: In perhaps the most obvious example of using force in the name of securing elections, prosecutors and law enforcement have launched campaigns to police the ballot box. The banner of “election fraud” includes efforts to curtail ballot access and, in extreme cases, criminalize activity viewed as threatening the process. Both overlook the historical sensitivity of political violence against black voters. Mustering armed police at polling places near HBCUs, such as Florida A&M University and Jackson State University created an atmosphere of intimidation in the community — which undermines their sense that the electoral process welcomes participation.
Election integrity is a crucial concern, but the the potential harm that some policies cause to voters demands greater caution. HBCUs often find themselves disproportionately affected by these measures, and the existing law provides fewer opportunities to have their concerns regarded in the crafting of these policies. Policymakers must embrace both sides of the analysis — the burdens and the benefits of election integrity initiatives, so that the work of elections enhances full and fair political participation.
Colorado: “On Native Land, a New Push to Expand Voting Meets the Long Tail of State Violence”
Lorelei Cloud was born in 1967, three years before Native Americans living on tribal lands in Colorado were guaranteed the right to vote. Even once she turned 18, and for many years thereafter, she did not vote. Her polling place was in Durango, miles from the Southern Ute Indian Tribe Reservation, where she lived, and she had no car with which to access registration services or to cast a ballot. Politicians seldom visited her area, and hardly seemed to represent her interests, anyway.Cloud is now vice chair of the Southern Ute tribal council, and from the tribe’s headquarters early this summer, she reflected on how much has changed. Since 2019, when Democrats gained a legislative trifecta in the state, Colorado has established a polling place on the reservation and placed a drop box there for mail ballots. The state has also hired special liaisons to promote and facilitate turnout among Native voters. “I don’t want future generations to have to deal with any of what we’ve had to, to get to vote,” Cloud told me. “We should have access to the vote, to shape our own region, our own country.”
Colorado officials are now proposing to go further. In 2023, the state adopted legislation to try something that’s never been done in this country: automatically register tribal members to vote in U.S. elections.
The program, if implemented, would enable tribes to share their membership lists with Colorado elections officials, who’d then use that information to register every eligible person to vote, while giving them a chance to opt out. Since Colorado already mails ballots to every registered voter, this would necessarily mean getting ballots into the hands of more Native people. “We’ve made real steps forward, and we’re going to continue,” Colorado Secretary of State Jena Griswold told me recently. “We always try to push the envelope.”
Cloud, like Griswold, sees immense promise in this plan. When she testified in favor of the law last year, she said Colorado “serves as a model for other states to increase voting among tribal members.” And advocates living in those other states are watching. Several told me Colorado’s reform could be transformative if it spreads nationwide: Roughly one third of the more than six million Native Americans who are eligible to vote across the country are not registered, a share far greater than that of white Americans who are unregistered.
And yet, Cloud is also keenly concerned that the program could make her community more vulnerable. For U.S. election officials to automatically register tribal members to vote, the tribes would need to share certain vital information about their members, such as full name, address, and date of birth. Cloud is hesitant to hand this data over to a state that has, over a long history that she knows too well, been an agent of violence…
My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”
I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:
American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.
Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.
Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.
Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.
“Justice Department Secures Agreement to Eliminate Voting Barriers for Native Americans in South Dakota”
The Justice Department has secured an agreement with Bennett County, South Dakota, and county officials to resolve claims that the county has failed to make its registration and early voting opportunities equally open to Native American voters as required by Section 2 of the Voting Rights Act.
Under the terms of the agreement, Bennett County will operate a satellite office in Allen, South Dakota, to provide in-person registration and absentee voting services during regular business hours for the full state-mandated 46-day absentee voting period prior to federal, state and county elections.
“It is time to eliminate all barriers standing between Native American voters and the ballot box across our country. An inclusive democracy must provide all of its eligible voters access to the full range of voter registration and early voting opportunities required by law,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “With this agreement, we will ensure that Native American voters will have the same access to registration and early voting as do other voters. The Justice Department will continue to challenge discriminatory election-related laws and policies and will vigorously enforce federal law to move us ever closer to a fully enfranchised Native electorate.”…
“Mississippi can wait to reset legislative districts that dilute Black voting strength, judges say”
AP, on yesterday’s order in Mississippi State Conference of NAACP v. State Board of Election Commissioners:
Mississippi can wait until next year to redraw some of its legislative districts to replace ones where Black voting power is currently diluted, three federal judges said Thursday.
The decision updates a timeline from the judges, who issued a ruling July 2 that found problems with districts in three parts of the state — a ruling that will require multiple House and Senate districts to be reconfigured. The judges originally said they wanted new districts set before the regular legislative session begins in January.
Their decision Thursday means Mississippi will not hold special legislative elections this November on the same day as the presidential election. It also means current legislators are likely to serve half of the four-year term in districts where the judges found that Black voters’ voices are diminished.
More on this story from Mississippi Today.
“Federal court declines to dismiss Alabama redistricting case after South Carolina ruling”
Alabama Reflector: “The three-judge panel overseeing the legal battle in Allen v. Milligan, which led to the creation of two congressional districts in Alabama with majority or near-majority Black populations, last week rejected a motion from the Alabama Secretary of State to dismiss the case.”
11th Circuit Denies Rehearing En Banc in Georgia VRA Case
The order in Rose v. Secretary, State of Georgia, is here. As Rick noted in this November post, the panel reversed the district court’s conclusion that the at-large system used to elect Public Service Commission members violates Section 2 of the Voting Rights Act. Three judges dissent from the denial of rehearing, arguing that the panel opinion erodes Section 2.
“After controversial court rulings, a Voting Rights Act lawsuit takes an unusual turn”
Hansi Lo Wang for NPR:
Last Friday, attorneys led by the American Civil Liberties Union let a filing deadline pass at the U.S. Supreme Court, choosing not to ask the justices to review a controversial lower court ruling that threatens to help end one of the main ways for enforcing the landmark law’s protections against racial discrimination in the election process.
The groups say they are now considering other avenues for challenging a redistricting plan for Arkansas’ state legislature that they argue takes away meaningful opportunities for Black communities to elect representatives of their choice.
The roundabout legal strategy is resurfacing questions about the future of the Civil Rights-era legislation that the Supreme Court’s conservative majority has weakened through multiple rulings since 2013.
See also my June 28 post, Breaking: Plaintiffs, Likely Fearing the Supreme Court Will Make Things Worse, Decline to Seek Supreme Court Review of Eighth Circuit Case Holding There’s No Right For Private Parties to Sue Under Section 2 of Voting Rights Act.
“Federal Court Orders Mississippi’s State Legislative Maps to Be Redrawn”
Release:
A federal court has ordered Mississippi to redraw its 2022 state legislative maps in several areas after concluding those maps unlawfully dilute the voting strength of Black Mississippians.
Civil rights advocates challenged the maps and showed at trial that the maps violate Section 2 of the Voting Rights Act. Plaintiffs presented extensive expert testimony and testimony from Black Mississippians from across the state to show that the political process in the challenged legislative districts was not equally open to Black voters.
The American Civil Liberties Union, ACLU of Mississippi, Lawyers’ Committee for Civil Rights Under Law, Morgan, Lewis & Bockius LLP, Mississippi Center for Justice, and civil rights attorney Carroll Rhodes filed the lawsuit on behalf of the Mississippi State Conference of the NAACP and voters from across the state.
The court ruled that multiple new Black-majority districts should have been created — at least two in the state Senate and one in the state House. In the absence of Black-majority districts, stark racial polarization, combined with the history of racial discrimination in the state and other factors, deprives Black voters in the state of the right to participate equally in the political process, in violation of Section 2.
The ruling, issued last night, requires the creation of new Black-majority Senate districts in the areas around DeSoto County in Northern Mississippi and in and around the city of Hattiesburg, and a new Black-majority House district in Chickasaw and Monroe counties.
Breaking: Plaintiffs, Likely Fearing the Supreme Court Will Make Things Worse, Decline to Seek Supreme Court Review of Eighth Circuit Case Holding There’s No Right For Private Parties to Sue Under Section 2 of Voting Rights Act
With today’s deadline, I have learned there will be no cert petition filed. This is a case from the Eighth Circuit that is wrong on the text of the Voting Rights Act, wrong on its history, and wrong on its purpose. And yet the plaintiffs have made a decision not to sue.
Without a cert. petition filed, this means that there’s no right of private plaintiffs to bring suit to enforce Section 2 of the VRA anywhere in the Eighth Circuit. (It’s possible this will change down the line in pending Eighth Circuit cases raising the question whether such a right to sue could come through section 1983.)
So why not bring this to the Supreme Court? The fear must be that despite the strong arguments that there is such a right for private plaintiffs to sue under Section 2, a majority of the Court could disagree. If applied nationally, such a ruling could eliminate 96 percent of section 2 redistricting cases brought nationally.
I’ll have more to say about this soon.
UPDATE: After hearing from a reader, here’s perhaps more optimistic way to think about this issue. Maybe one reason not to seek cert. in this case is that upcoming there’s a better vehicle for Supreme Court review. There’s another case from the circuit where section 1983 will be the basis for relief (there’s one of those in the pipeline now).
“An Alabama Town’s New Mayor Was Locked Out. 3 Years Later, He Will Return.”
Nearly four years after Patrick Braxton won the mayoral election for the small town of Newbern, Ala., in November 2020, he could soon get to serve his first term.
Mr. Braxton said in a lawsuit that, after he won the election, he never received access to manage the town’s finances, was barred from opening the municipal mailbox and was even locked out of the town hall, after the locks had been changed twice in six months.
Finally, on Friday, Newbern and Mr. Braxton filed a settlement agreement that, if approved by Judge Kristi K. DuBose of the Southern District of Alabama, will allow Mr. Braxton to begin his first term — three and a half years after it started.
“Every time I turned a corner, there was another obstacle in my way,” Mr. Braxton, a handyman who has long worked as a community volunteer, said in an interview.
A town of about 130 people, Newbern had not held an election for mayor since 1965 and instead allowed mayors to pick their successors. The town, where a majority of residents are Black, had never had a Black mayor. That more than five decade long streak without an election ended when Mr. Braxton filed the paperwork to run for mayor in the town’s 2020 election and, since he was the only person to do so, became the first Black mayor in Newbern’s history.
But over the next three years, the town’s incumbent leaders tried to bar Mr. Braxton from serving in the role, according to the lawsuit, in which he accused town leaders of racial discrimination. The lawsuit names the former mayor, Haywood Stokes III. Last week, the town and Mr. Braxton agreed on a settlement that would instate Mr. Braxton as the town’s rightful mayor, ensure the town holds regular elections, and require the town to admit to violating a series of laws, including the Fifteenth Amendment and the Voting Rights Act.
“Where’s Mr. Postman? The Struggles of Voting by Mail in Indian Country”
New article by Torey Dolan in the Harvard Civil Rights-Civil Liberties Law Review.
5th Circuit, Evenly Split, Will Not Consider for Now En Banc Louisiana’s Argument that Private Plaintiffs Cannot Sue Under Section 2 of the Voting Rights Act
The 5th U.S. Circuit Court of Appeals denied a request today for a hearing with the full court on the issue of whether individuals and groups can sue under Section 2 of the federal Voting Rights Act.
Monday’s decision means the entire 5th Circuit — the nation’s most conservative federal appeals court which covers Louisiana, Mississippi and Texas — won’t consider whether a group of Black voters and civil rights groups lacked the standing to sue Louisiana in 2022 over the state’s electoral districts, which were struck down by a federal district court in February. The state is appealing this decision, so the matter is not yet resolved.
The vote on the 5th Circuit was close, with eight judges voting in favor of hearing the case en banc, and eight others declining the hearing.
Attorneys for the state indicated in a June 7 status report that officials were waiting for the 5th Circuit’s ruling on whether it would hold an en banc hearing on the private-right-of-action issue before Louisiana began the process of redrawing the state’s legislative maps.