Category Archives: Voting Rights Act

“Obscure legal theory could weaken voters’ protections from racist laws”

The Guardian:

A federal court has embraced a novel legal theory that seriously threatens one of the last legs of the Voting Rights Act of 1965.

At the heart of the dispute is who has the right to bring a case under the law, a crown jewel of the civil rights movement that has worked to prevent voting discrimination against minorities. For more than half a century, the Department of Justice as well as private plaintiffs – anyone from an individual voter to a civic action group – have filed cases under section 2 of the law, which prohibits any voting practice or procedure that discriminates on the basis of race.

The case that could upend the law started out as a typical voting rights lawsuit. In late 2021, the Arkansas NAACP and the Arkansas Public Policy Panel sued the state, arguing that the new Arkansas house of representatives districts illegally discriminated against Black Arkansans by packing the Black vote into a disproportionately small number of districts.

But in a surprise ruling in 2022, a federal judge ruled that only the federal government, not private plaintiffs can file lawsuits under section 2. The US court of appeals for the eighth circuit has since upheld that ruling. The issue is likely to be ultimately resolved by the US supreme court.

Voting rights lawyers say the rulings are “radical and unprecedented”. For decades, the vast majority of cases under section 2 have been filed by private plaintiffs, not the government. Only allowing the government to bring section 2 cases would bring enforcement of the Voting Rights Act to a halt.

“Private plaintiffs bringing cases under section two has been one of the hallmark ways to protect voting rights in this country,” said Jonathan Topaz, a staff attorney for the ACLU Voting Rights Project. “If private plaintiffs are unable to bring suit and vindicate their rights under section 2, then in our estimation, there will be large swaths of violations of section 2 that will go unremedied.”

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“Judge redraws WA’s legislative map after lawsuit over Latino voters”

Seattle Times:

Washington’s political map is set to change in response to allegations of discrimination against Latino voters, and a result could be Democrats winning more seats in the Legislature.

U.S. District Court Judge Robert Lasnik approved new boundaries for several state legislative districts in a written order Friday, after ruling last year that the current map impaired the ability of Latino voters in the Yakima Valley and Pasco areas to elect their preferred candidates.

The new map will create an additional Democrat-leaning district in Central Washington and could affect the balance of power in other districts, experts said. Some advocates said Friday’s order would cement the strength of the Voting Rights Act of 1965, and Democrats applauded the new map, while Republicans slammed it, with a Latina state senator from Pasco calling it a “partisan gerrymander.”

The new boundaries will be used in legislative elections this year unless conservative opponents convince the 9th Circuit U.S. Court of Appeals to put them on hold….

MORE from the UCLA Voting Rights Project.

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“Racial Turnout Gap Has Widened With a Weakened Voting Rights Act, Study Finds”

NYT:

When the Supreme Court knocked down a core part of the Voting Rights Act in 2013, Chief Justice John G. Roberts Jr. argued that some of the law’s protections against racial discrimination were no longer necessary.

He wrote that the once-troubling turnout gap between white and Black voters in areas with histories of discrimination at the polls had largely disappeared, and that “the conditions that originally justified” the civil rights law’s attention to these places, mostly in the South, no longer existed.

But a new, yearslong study by the Brennan Center for Justice, a nonpartisan think tank focused on democracy and voting rights issues, suggests otherwise.

Before the decision, counties with a history of racial discrimination at the polls were required to obtain permission from the Justice Department before changing voting laws or procedures. This was known as “preclearance” under Section 5 of the Voting Rights Act, and it was the Supreme Court’s 2013 decision in Shelby County v. Holder that effectively killed this part of the law.

Since that decision, the gap in turnout rates between white and nonwhite voters “grew almost twice as quickly in formerly covered jurisdictions as in other parts of the country with similar demographic and socioeconomic profiles,” the Brennan study found.

The “racial turnout gap” refers to the difference in the percentage of eligible white and nonwhite voters who cast a ballot in a given election. This gap is watched closely by voting rights groups and civil rights leaders as an indication of potentially harmful laws or procedures that could have suppressive effects on communities of color.

According to the group’s report, the turnout gap between Black and white voters in those former Section 5 counties has grown by 11 percentage points since the Shelby decision, between 2012 and 2022. The study relied on nearly one billion voter files to estimate that, had the decision never occurred, the white-Black turnout gap would have nevertheless grown, but by just six percentage points.

Though that difference may appear small, the study’s authors contend that such gaps are “potentially huge” in modern politics: Since 2012, at least 62 elections for Senate, governor and president in states with Section 5 counties were decided by under five percentage points.

“Obviously, it matters from a moral standpoint, but it also matters because the margins are significant, particularly given how close elections are around the country,” said Kareem Crayton, the senior director for voting rights and representation at the Brennan Center.

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Federal Court Strikes Down Some, Upholds Other, Parts of Arizona Laws Requiring Proof of Citizenship to Register to Vote in State Elections and for State to Investigate Possible Noncitizen Registration

This is a complex ruling in a long-running case. (Via AZ Law).

From the conclusion of the 109-page opinion:

Non-US Plaintiffs may enforce § 10101 of the Civil Rights Act. Requiring individuals who register to vote using the State Form to include the individual’s state or country of birth violates the Materiality Provision of the Civil Rights Act. H.B. 2243’s Reason to Believe Provision also violates the Civil Rights Act, as well as section 8(b) of the NVRA because the provision will result in the investigation of only naturalized citizens based on county recorders’ subjective beliefs that a naturalized individual is a non-citizen.


In addition, requiring individuals registering to vote with the State Form to include documentary proof of residence to register for federal elections violates sections 6 and 7 of
the NVRA. However, Plaintiffs have not carried their burden to show that the VotingLaws’ remaining citizenship investigation procedures, DPOC requirements, and registration cancellation procedures violate the NVRA or the VRA. Nor do these provisions impose an undue burden on the right to vote or violate the equal protection and due process guarantees of the U.S. constitution. Finally, the Court concludes that Plaintiffs failed to show that the Voting Laws were enacted with any discriminatory purpose.


IT IS ORDERED declaring that A.R.S. § 16-121.01(A) violates § 10101(a)(2)(B) of the Civil Rights Act by denying Arizonans the right to vote based on errors or omissions that are not material to determining Arizonan’s eligibility to vote. Arizona may not reject State Form registrations that lack an individual’s state or country of birth and must register
an individual if that individual is found eligible to vote.


IT IS FURTHER ORDERED declaring that A.R.S. § 16-165(I) violates § 10101(a)(2)(A) of the Civil Rights Act and section 8(b) of the NVRA by subjecting naturalized citizens whom county recorders have reason to believe are non-citizens to SAVE checks, which is a different standard, practice, or procedure than that applied to native-born citizens. Arizona may not conduct SAVE checks on any registered voter whom county recorders have reason to believe are a non-citizen. But Arizona may conduct SAVE checks on registered voters who have provided DPOC. See A.R.S. § 16-165(I).

IT IS FURTHER ORDERED declaring that A.R.S. § 16-121.01(A) violates sections 6 and 7 of the NVRA by requiring Arizonans who register with the State Form to provide documentary proof of residence. Arizona may not reject State Form registrations that are not accompanied by documentary proof of residence but must register an individual without proof of residence as a Federal-Only Voter if that individual is otherwise eligible to vote.

MORE from Danielle Lang.

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Travis Crum: “Justice Alito Embraces a Retrogression Standard”

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”
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“Civil Rights Groups Secure Victory in LandmarkCase Challenging Racial Discrimination inLouisiana’s State Legislative Maps”

Release:

In a victory for fair maps, a federal court today ruled in favor of Louisiana voters, agreeing that the current state House and Senate district maps violate Section 2 of the Voting Rights Act.

The plaintiffs who challenged the state legislative maps — the Louisiana State Conference of the NAACP, Black Voters Matter Capacity Building Institute, and several individual voters — are represented by the American Civil Liberties Union, ACLU of Louisiana, Legal Defense Fund (LDF), law firm Cozen O’ Connor, and Louisiana attorneys Ron Wilson and John Adcock.

In its decision, the court condemned the packing and cracking of Black communities within the maps, emphasizing the importance of upholding the principles of equal representation for all citizens.

In response to these findings, the court has mandated remedial measures to rectify the discriminatory boundaries, ensuring that future elections reflect the true diversity of the Louisiana population. Today’s decision reinforces the importance of protecting every citizen’s right to vote and ensures that electoral processes are fair, just, and free from discriminatory practices.

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Full Eighth Circuit, Over 3 Dissenting Judges, Won’t Rehear Case That Would End Most Cases Brought Under Section 2 of the Voting Rights Act

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.

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“5th Circuit will rehear case that created Louisiana’s only Black supreme court seat”

Louisiana Illuminator:

The U.S. 5th Circuit Court of Appeals has agreed to rehear a decades old voting rights case that established the only majority-Black state supreme court district in Louisiana, according to the court’s docket Monday afternoon. 

On Monday, the 5th Circuit granted a petition from the State of Louisiana for a rehearing en banc on Chisom v. State of Louisiana, a gerrymandering lawsuit that stems from the 1980s. In the lawsuit, Black voters argued the Louisiana Legislature gerrymandered the Louisiana Supreme Court districts by packing Black neighborhoods into majority-white districts. 

After protracted litigation that reached the U.S. Supreme Court, the state eventually agreed to a consent judgment in 1992 that settled the case by creating a majority-Black district based out of New Orleans. Associate Justice Piper Griffin currently holds the seat. 

However, the state, through then-Attorney General Jeff Landry, moved to dissolve the consent judgment in 2021 ahead of the legislature’s special session on redistricting the following year. 

Landry, a Republican who now serves as Louisiana’s governor, argued that the state no longer needs a federal court to force it to comply with the Voting Rights Act. He further argued that the consent judgment was only meant to be temporary and is being incorrectly used as a “perpetual federal check on the State.”

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“The California Supreme Court Replaces Gingles Prong One”

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.

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“Your Guide to Four Emerging Threats to the Voting Rights Act”

Bolts:

After years of being whittled away by federal judges, the Voting Rights Act unexpectedly survived an existential threat in 2023 when the U.S. Supreme Court upheld what’s left of the landmark civil rights law while striking down Alabama’s congressional map. 

“The court didn’t make it any easier to win voting rights cases,” redistricting expert Justin Levitt told Bolts at the time. “It just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights cases may still get much harder this year. A series of cases are working their way through federal courts that represent grave threats to Section 2 of the VRA, which prohibits denying the right to vote “on account or race or color,” language that extends into protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal arguments, each of which would result in a dramatic narrowing in the scope of the VRA. The cases are still making their way through district and appellate courts, with some early rulings favoring conservatives, at times authored by judges nominated by Donald Trump. Many are expected to end up at the Supreme Court, where members of the conservative majority have already expressed skepticism at various aspects of the VRA. 

Judges will decide if critical protections afforded by Section 2 of the VRA remain applicable to the present, whether the law applies to statewide races and coalition districts, and even whether voting rights groups can ever bring a lawsuit under Section 2—a sleeper case that already detonated in an appeals court last fall. The most acute stakes concern the rules of redistricting, with officials in GOP-run states including Alabama, Arkansas, Louisiana, North Dakota, and Texas proposing new interpretations that would fuel gerrymandering and undercut the voting power of communities of color. 

Here is your roadmap to four major legal threats that may further unravel the VRA in 2024, and what cases you should be watching….

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“Graves to lose U.S. House seat under Louisiana redistricting plan that adds minority seat”

Louisiana Illuminator:

Louisiana lawmakers gave final approval Friday to a congressional redistricting plan that adds a second majority-Black district to the state’s U.S. House lineup, likely at the expense of U.S. Rep. Garret Graves, a Republican from Baton Rouge. 

State lawmakers passed a plan that creates a second majority Black congressional district that stretches from Caddo Parish in northwest Louisiana to East Baton Rouge Parish, slashing across the center of the state. It now goes to Gov. Jeff Landry’s desk, where he is expected to sign the bill into law. 

“The outcome of this special session is a win for the people of Louisiana… we took the pen out of the hand of a non-elected judge and placed it in the hands of the people,” Landry said in a press release.

The plan is in response to a court order in the case Robinson v. Landry, in which Black voters sued to block the implementation of a congressional district map the legislature approved in 2022 that has only one majority-Black district. U.S. District Judge Shelly Dick, an appointee of former President Barack Obama who is presiding over the case, gave lawmakers until Jan. 31 to redraw the lines to comply with the Voting Rights Act.

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“Congressional map with Gov. Jeff Landry’s backing clears Louisiana Senate”

Louisiana Illuminator:

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.

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“Federal judge allows quick runoffs under Georgia voting law”

AJC:

A federal judge upheld Georgia’s shortened four-week runoff period mandated by the state’s 2021 voting law, ruling Friday that there wasn’t evidence to prove discrimination against Black voters.

U.S. District Judge J.P. Boulee’s decision keeps in place quick runoffs after general elections and fewer early voting days before runoffs. The ruling also maintains a voter registration deadline 29 days before elections, preventing new voters from being able to sign up ahead of runoffs.

“Plaintiffs presented evidence that Black voters are more likely to vote early. Plaintiffs did not present any evidence, however, which would show why Black voters would disproportionately struggle to vote during the new early voting period,” Boulee wrote in a 31-page order. “… All of the factors weigh against a discriminatory intent finding.”

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