The following is a guest post from Travis Crum:
Earlier this week, the Supreme Court denied cert in Coalition for TJ v. Fairfax County School Board, an important case about intentional discrimination and what facially neutral policies to promote diversity can be implemented after SFFA v. Harvard. Justice Alito, joined by Justice Thomas, authored a fiery dissent from denial of cert. As Rick noted on this blog, Alito’s dissental struck a very different tune than his majority opinion in Brnovich v. DNC—or, for that matter, his dissent in Inclusive Communities Project.
Here, I want to expand on Rick’s point and emphasize that Justice Alito’s approach is not your ordinary disparate impact standard, like one would use under Title VII or the Fair Housing Act (FHA). The former statute, for example, looks to the effect of a policy on the success of minority job applicants as measured against their availability in the local labor market. By contrast, Justice Alito embraced a retrogression standard—and one that applies even when a racial group is over-represented.
Continue reading Travis Crum: “Justice Alito Embraces a Retrogression Standard”
The court’s decision not to grant rehearing en banc, a concurrence by Judge Stras, and a dissent by Judge Colloton, is here. The original panel decision held that Section 2 of the VRA contains no private right of action, which I’ve explained would essentially kill of much of the section (because DOJ brings very few suits). I fully expect the Supreme Court to take this case, given its importance and given how every wrong it is as a matter of text, legislative history, congressional intent, and justice.
But I would note a major potential concession (and potentially easy way around the ruling) by Judge Stras: “It may well turn out that private plaintiffs can sue to enforce § 2 of the Voting
Rights Act under § 1983.”
How stingy and uncharitable for Judge Stras and the rest of the majority not to send this case back to the district court to see if a case could properly be pleaded under section 1983, and not put the Voting Rights Act through tremendous stress unnecessarily yet again.
Jason D’Andrea and Bruce Wessel have posted this draft on SSRN (forthcoming, Fordham Law Voting Rights and Democracy Forum). Here is the abstract:
This Essay analyzes Pico Neighborhood Association v. City of Santa Monica, the California Supreme Court’s first decision interpreting the California Voting Rights Act of 2001 (“CVRA”).
This Essay explains the holding of Pico Neighborhood and the new prerequisite for suit that it establishes. It then addresses five topics related to understanding and applying the decision.
First, the opinion’s focus on the ability of candidates to win by a plurality of the vote is discussed, as it will be central to liability and remedy issues in future cases. When a majority of the vote is not required to win an election, smaller groups of minority voters below a majority are able to elect their preferred candidates. Second, and related to the first point, the importance of crossover voters in the California Supreme Court’s approach is addressed. Here, the majority opinion in Strickland is rejected, and, in essence, the dissent by Justice David Souter in that case is embraced. Third, we identify alternative electoral systems mentioned in Pico Neighborhood and the new judicial task of comparing existing at-large systems to alternative systems in the liability phase of the case. Fourth, the decision’s reference to Section 5 of the VRA is explored. Like the new test that is now a part of the CVRA, in historical Section 5 cases, existing electoral systems were compared to proposed systems. Finally, we offer an interpretation of the “ability to influence” prong of the CVRA, a statutory interpretation question the California Supreme Court decided not to address in Pico Neighborhood because it was not squarely raised in the case.
The Louisiana Senate gave its approval Wednesday to a congressional redistricting proposal that increases the number of majority-Black districts to two out of six. Gov. Jeff Landry backs the legislation that faces an end-of-month deadline for approval.
Senate Bill 8, sponsored by Sen. Glen Womack, R-Harrisonburg, turns the 6th Congressional District, which U.S. Rep. Garret Graves, R-Baton Rouge, holds, into a majority-Black district that stretches diagonally across the center of the state from Caddo Parish in northwest Louisiana to East Baton Rouge Parish.
The bill was passed with a 27-11 vote, with Republicans accounting for all of the no votes.
A congressional redistricting plan must be approved before the special session ends at 6 p.m.Tuesday to comply with an order from a U.S. District Judge Shelly Dick, who gave the legislature until Jan. 31 to redraw the lines. A version lawmakers passed in 2022, retained a single majority-Black district, led to a lawsuit from a group of Black voters to block its boundaries from taking effect.
U.S. Speaker of the House Mike Johnson continues to try to derail the deal.
I have written this guest essay (free gift link) for the NY Times (adapted from my upcoming book, A Real Right to Vote). It begins:
The history of voting in the United States shows the high costs of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.
Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”
As we enter yet another fraught election season, it’s easy to miss that many of the problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change….
Most expansions of voting rights in the United States have come from constitutional amendments and congressional action, not from courts. In fact, in Bush v. Gore, to give a relatively recent example, the Supreme Court reiterated that the Constitution does not guarantee citizens the right to vote for president and confirmed that states may take back the power to appoint presidential electors directly in future elections…
It is hard to overstate how unusual it was for Mr. Carrington to get the Supreme Court to strike down his disenfranchisement. His lawsuit came during the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.Mr. Carrington fared better than many others who previously brought their claims of disenfranchisement to the Supreme Court, including most importantly Virginia Minor and Jackson W. Giles. Their cases perpetuated the disenfranchisement of millions of women and African American voters despite constitutional amendments that appeared to protect their rights….
You can find the opinion here. The court in a footnote leaves open the possibility that plaintiffs in a new case could make an argument that the failure to create a coalition district under the Legislature’s new plan in one of the congressional districts is a new VRA violation. That issue, however, will not be litigated in time for the 2024 elections.
Given that Judge Jones, who initially found a Voting Rights Act section 2 violation, has accepted the legislature’s new plan as curing the violation, it seems highly unlikely that plaintiffs will get this matter overturned on an emergency basis if they seek emergency relief. (And chances of prevailing on a regular appeal seem quite uncertain given the findings here.)
Andy Grewal (Iowa), forthcoming in the Fordham Law Voting Rights and Democracy Forum, Discriminatory Intent Claims Under Section 2 of the Voting Rights Act. Here is the abstract:
This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results. Lower courts have long found that Section 2 prohibits intentional discrimination. And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach. But the Eleventh Circuit, after offering different positions over the years, recently decided that Section 2 does not reach intentional discrimination.
This Article shows that Section 2, as it currently exists, does not reach intentional discrimination. However, this exclusion may have been unintended by Congress. And the exclusion leads to severe anomalies and inequities. This Article thus urges Congress to codify an intent test and offers principles for Congress to follow in codification.