Category Archives: Voting Rights Act

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

Democracy Docket:

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.

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“Supreme Court won’t take up Georgia dispute over ‘at-large’ elections and minority vote dilution”

CNN:

The Supreme Court won’t take up a case challenging Georgia’s system for electing its public utility board in a defeat for Black voters who argued the so-called “at-large” electoral system diluted their votes.

The justices’ refusal to get involved will potentially make it much harder for challenges to such at-large systems of voting – that challengers call a “relic of Jim Crow” – to move forward in three states in the South.

The five members of Georgia’s Public Service Commission are each elected in staggered, statewide votes – a system that a federal judge said violated the Voting Rights Act. That ruling was then reversed by the 11th US Circuit Court of Appeals, prompting the Black voters’ appeal to the Supreme Court.

In declining to take up the case Monday, the Supreme Court did not say anything on the merits of the arguments. However, the move leaves standing an 11th Circuit precedent that could affect other Voting Rights Act lawsuits brought in Florida, Georgia and Alabama, the three states the circuit covers.

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Supreme Court Asks for US Government’s Views on North Dakota Racial Gerrymandering/Voting Rights Act Case

Order list and jurisdictional statement.

Surprise! A brief from Alabama for 13 states would go much further in attempting to dismantle the Voting Rights Act as applied to redistricting.

The request to hear from the Solicitor General means this case likely won’t be considered to be set for argument until 2025.

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Were the Liberal Justices Savvy or Suckers in the NAMUDNO Voting Rights Case Leading to the Shelby County Case Overturning a Key Part of the Voting Rights Act? New Inside Information from Judge Tatel Shows They Were Suckers

Before there was Shelby County there was NAMUDNO, a case that punted on the constitutionality of a key part of the Voting Rights Act in an almost unanimous opinion. I wrote in the Supreme Court Review in 2009 that the liberals’ decision to join the Chief Justice’s majority opinion appeared to be strategic, to give Congress more time to fix the problems the Court perceived with the VRA. (It didn’t.) But I later wondered, as in this 2013 Slate column, whether the Justices were savvy or suckers. Here were my three theories:


The liberals are buying time.  In 2009, it sure seemed from oral argument that the five conservative justices were ready to strike down Section 5 of the Voting Rights Act (the part that fell last week) as exceeding congressional power. But in the end, the court did not do that. Instead, eight of the nine Justices (with Justice Clarence Thomas dissenting) joined in a tendentious and unsupportable analysis of the voting rights statute to avoid deciding the constitutional question. The price of avoiding a 5–4 decision striking down part of the Voting Rights Act was likely the liberals’ agreement to cast doubt on the law’s constitutionality.

The price was worth it, even now. That 8–1 ruling gave Congress a chance to do something to fix the Voting Rights Act (though Congress didn’t). The decision also bought four more years of life for Section 5, during a period of intense redistricting following the 2010 census, and while states like Texas and South Carolina passed new strict voter ID laws. It was better to have the law on the books for a little longer than watch it fall.

The liberals are trying to run out the clock. Sure John Roberts is playing a long game, but time is on the liberals’ side. Democrats have won the popular vote in five of the last six presidential elections, and demographics favor them in continuing to win the presidency. If Democrats can win the next presidential election, the chance of replacing at least Justice Scalia or Justice Kennedy are pretty high, given that both are in their 70s. Liptak remarked that Scalia writes like a man in a hurry. If some decisions can be put off long enough, they might remain unresolved till the court shifts.

The liberals are trying to highlight the dangers of the Roberts Court. The 2009 Voting Rights Act decision should have been a wake-up call for Congress and the American public about the invalidation of the law we just saw. It’s the same with the affirmative action case, as well as last year’s health care case, which cut back significantly on Congress’ commerce clause powers. Dissents are one way to get the public’s attention. But they are not the only way. When the liberal justices sign on to an opinion that anticipates future reversals of Supreme Court precedent but doesn’t yet go quite that far, it’s a sign of significant behind-the-scenes compromise to avert disaster.

Well now comes this news in Judge Tatel’s book, as reported by Joan Biskupic for CNN:

In his book, Tatel wrote that Ginsburg told him about the behind-the-scenes dealings in a 2009 case, known as Northwest Austin v. Holder, that was the forerunner to Shelby County. The 2009 case left the VRA’s Section 5 intact, although its reasoning laid the groundwork for future obliteration. (Tatel had authored the lower court opinions in both Northwest Austin and Shelby County.)

When the Supreme Court ruled in 2009, Tatel said, “What I couldn’t figure out was why the four liberal justices had joined the Chief’s majority opinion. … (T)he unnecessary and irrelevant jabs at Section 5’s constitutionality? Why had they gone along with that part of the Chief ’s opinion? I suspected I knew the answer, and Justice Ginsburg herself later confirmed my suspicions.”

“The justices had initially voted 5–4 to declare Section 5 unconstitutional, but they later worked out a compromise: The majority agreed to sidestep the big question about Section 5’s constitutionality, and the would-be dissenters agreed … to sign on to the critique of Section 5,” the judge wrote. “With that compromise, the liberal justices had bought Congress time to salvage the keystone of the Civil Rights Movement.”

Congress never acted, and Tatel contends the 2009 compromise cost the liberals: “They sure paid a high price: an unrebutted opinion that criticized the VRA and, worse, endorsed a new ‘equal sovereignty’ doctrine with potentially profound implications,” Tatel wrote of the principle that restricted Congress’ ability to single out certain states, in this situation because of past discriminatory practices. “The Court’s opinion in Northwest Austin thus planted the seeds for Section 5’s destruction.”

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Breaking and Analysis: Justice Alito for Republican Justices, over the Dissent of Democratic Justices, Rewrites Racial Gerrymandering Standards to Help White Republican States

[This post has been edited and updated.]

In a 6-3 decision authored by Justice Alito, the Supreme Court has reversed a lower court ruling holding that South Carolina’s congressional map was a racial gerrymandering. Justice Thomas concurred, and Justice Kagan, for the three liberal justices dissented. The majority did something rare: it rejected the factual findings of the lower court, something the Court only is supposed to do when those lower court findings are clearly erroneous.

This area of the law is unduly complex, so let me begin with a bottom line practical assessment of today’s case before wading into the weeds: Justice Alito for a court majority has once again come up with a legal framework that makes it easier for Republican states to engage in redistricting to help white Republicans maximize their political power. He did so by reversing the burden of proof that should apply in these cases in two ways to favor these states: pushing a “presumption of good faith” and raising the evidentiary burdens for those challenging the maps.

Once upon a time racial gerrymandering claims were brought by white Republicans in the South to stop the creation of more districts in which minority voters could elect candidates of their choice. The US Department of Justice was essentially forcing the states to draw these districts under DOJ’s interpretation of the Voting Rights Act. The new racial gerrrymandering cause of action, first recognized in Shaw v. Reno, made this harder to do. As the cause of action under the Equal Protection Clause of the 14th Amendment emerged, it required proof that race was the predominant factor in drawing district lines, and that there was no compelling reason, such as complying with the Voting Rights Act to do so. I was (and remain) very critical of this cause of action, because the harm is not a real one about vote dilution, but an “expressive” one that the state purportedly sends by dividing voters on the basis of race without adequate justification.

Once DOJ stopped forcing Southern states to draw more of these districts, these racial gerrymandering cases sort of disappeared. They reemerged about a decade ago when a bunch of southern states sought to pack and crack black voters in districts to maximize white Republican voting power in the South. Sometimes these states did so in a way that violated the anti-vote dilution provisions of the Voting Rights Act. But the standards (Section 2/Gingles) are hard for plaintiffs to prove, and so when there was some vote dilution but not enough to make a VRA claim, black and Latino voters started bringing racial gerrymandering cases. And they won a bunch, including in Alabama, Virginia, and North Carolina.

By this decade, the racial gerrymandering cause of action had been repackaged as what Paul Clement once called “junior varsity” vote dilution claims. That is, they were not claims in which plaintiffs could prove VRA liability, but instead ones where it was enough to show lots of race consciousness in drawing district lines, in ways that hurt minority interests.

So it is not surprising that Justice Alito, one of the Justices most hostile to minority voting rights and voting rights claims more generally, pushed back. He dissented in Cooper v. Harris, a racial gerrymandering case written for the Court by Justice Kagan, and today, he’s turned his Cooper dissent standard into a majority opinion.

The specific question in both cases is how do you deal with a situation where race and party are highly correlated and where partisan gerrymandering is allowed and racial gerrymandering is not. I’ve written about this issue extensively in the Harvard Law Review Forum and William and Mary Law Review and Alabama Law Review and ACS Supreme Court Review. Trial courts must decide if race or party predominates, and that decision is subject to clear error review. (I believe that such an exercise is essentially impossible, but this is what courts have done for decades.)

As Justice Kagan explains in her dissent, J. Alito has turned things upside down when it comes to clear error review. Rather than defer heavily to the factual findings of the court, Justice Alito doubles down on the “presumption of good faith” that he gives the states when it comes to redistricting. It’s a huge thumb on the scale, especially when coupled with the blessing he gives to partisan gerrymandering, which goes MUCH farther than the Court did in Rucho (which was more agnostic about the practice). Second, he says that without smoking gun evidence where legislators are talking about racial quotas or targets, plaintiffs need to produce “alternative maps” where there is the same partisan benefits of the map but “greater racial balance.” This of course is hard to do when race and party are so correlated.

Bottom line: now that these racial gerrymandering cases have been used to help minority plaintiffs, Justice Alito is ready to shut them down.

(There’s much to say about Justice Thomas’s concurrence too, which would hold that both racial gerrymandering and vote dilution claims are nonjusticiable. But that will have to await future posts.)

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“The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics”

Rachel Moran has written this article for the Houston Law Review. Here is the abstract:

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The
plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy the discretion to choose among different population bases, including total population.


Since the Evenwel decision, there has been ongoing interest at both the federal and state levels in using alternatives such as citizen voting-age population (CVAP) to apportion representation. So far, the lack of accurate data on citizenship status has stymied these efforts. Even so, the issues in Evenwel deserve more attention than they have received. The choice about how to count when redistricting can have significant ramifications for both partisan power and minority voices. The litigation reveals the ways in which demographic change, especially the rise of immigrant populations, has tested the efficacy of a voting rights jurisprudence that largely focuses on citizens.


After describing the lawsuit and its aftermath, this Article turns to CVAP’s potential impact on political representation. The discussion first draws on the work of law professors Joseph Fishkin and Ilya Somin, both of whom conclude that alternative forms of representation significantly mitigate the shortcomings of the formal electoral process. Professor Fishkin focuses on virtual representation of those unable to vote, while Professor Somin emphasizes foot voting to express individual preferences. This Article suggests the limits of these strategies, especially for the undocumented, and then examines the issues from the perspective of immigrant integration. While most immigrants who are legally present in the United States eventually will be eligible to cast a ballot, those without legal status remain disenfranchised no matter how long they reside in and contribute to their communities.


For that reason, it is important to address how a switch to CVAP will affect the political representation of minority communities with substantial numbers of immigrants. This Article’s concluding section shows how this change might violate Section 2 of the Voting Rights Act if adopted in Texas. Redrawn maps could result in voter denial if large districts in areas with
high proportions of noncitizens depress minority turnout. Under a totality of the circumstances test, altered district lines would be particularly vulnerable because of Texas’s history of electoral discrimination, ongoing racial and ethnic disparities, and continuing polarization. The shift could also lead to impermissible voter dilution. Empirical data reveals that Texans remain deeply divided along both partisan and racial lines. Using CVAP instead of total population would strengthen non-Hispanic white and Republican representation while weakening Latinx and Democratic representation. Those effects would be pronounced and, therefore, should be subject to the most exacting judicial scrutiny. Otherwise, a purportedly race-neutral choice about population count could be manipulated to suppress minority voters’ influence. By considering how the exclusion of those ineligible to vote will harm the minority electorate, courts can retool and revitalize Section 2 jurisprudence to meet the challenges of a changing demography.

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Remedies Scholars Brief Filed in Chisom Judicial Elections Voting Rights Case Before En Banc Fifth Circuit

Remedies scholars Doug Laycock, Doug Rendleman, Caprice Roberts and I have filed this amicus brief in the Fifth Circuit, which is considering en banc Louisiana’s challenge to the consent decree in the Chisom case. It was written by a great team at O’Melveny featuring Kevin Kraft, Daniel Mateer, Stuart Sarnoff, and David Kelley.

From the Introduction:

The district court did not abuse its discretion in refusing to terminate—but offering to consider modification of—the Consent Decree requiring the State of Louisiana (the “State”) to continue to comply with Section 2 of the Voting Rights Act (“Section 2”) in an Orleans Parish-based district elections for the Louisiana Supreme Court. By its plain language, the Consent Decree is intended to apply prospectively to “ensure” the State’s continued compliance with Section 2 in the Orleans Parish-based district, ROA.98–99, until the State has made a sufficient evidentiary showing that relief from the terms of the Decree is warranted under Rule 60(b)(5). 

As the State has failed to offer any evidence of future compliance with Section 2, and given recent judicial findings that it continues to violate Section 2 as to other elections, it has not met its burden, rendering its present motion to terminate the Consent Decree inadequate as a matter of law. 

The Supreme Court has required that courts take federalism concerns seriously when a state asks to modify or terminate a consent decree imposed by a federal court. But invoking the term “federalism” does not allow the state to evade having to make its required evidentiary showing. In this case, the district court properly indicated it would consider modifying the Consent Decree in a flexible way in light of federalism principles if and when the State comes forward with actual evidence justifying modification. That day, however, has not yet arrived. 

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“Supreme Court Rejects Bid to Revive Washington State Voting Map Said to Hurt Hispanics”

NYT:

The Supreme Court refused on Tuesday to reinstate a voting map for the Washington State Legislature that a federal judge had found discriminated against Hispanic voters.

As is the court’s custom when it acts on emergency applications, its brief order gave no reasons. There were no noted dissents.

The case arose from a lawsuit by Hispanic voters who challenged a voting district in the Yakima Valley region that had been drawn by the state’s independent redistricting commission after the 2020 census. The plaintiffs said the district violated the Voting Rights Act by diluting their ability to elect their preferred candidates.

The case had some unusual features, notably that a majority of the challenged district’s voting age population was Hispanic…..

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New OMB race/ethnicity categories

Justin here. This is a really big deal: the federal government’s got new standards for collecting data on race and ethnicity.

The Office of Management and Budget has a sneak preview today of tomorrow’s update of “Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.” SPD 15 was initially developed in 1977 to help provide consistent data on race and ethnicity throughout the federal government, and drives all kinds of data collection in all kinds of contexts, including the Census, redistricting, and VRA claims. It was updated once in 1997, and this is a long-awaited version 3.0.

There are some big changes in the new standards, but the biggest include combining a question on Hispanic/Latino heritage along with other categories in one race-and-ethnicity question (the previous approach purported to separate race in one question and Hispanic/Latino ethnicity in another); adding a Middle Eastern or North African (MENA) category; and collecting detailed subgroup information within each category as a default.

Among other impacts, in applications like the Census and intercensal questionnaires, these standards will likely continue to help more accurately reveal how multiethnic we are. (Past methodology changes have already given us a far more accurate picture than we used to have: some of the country’s diversification is due to demographic change, but an awful lot is due to better capacity to recognize how diverse we already were, in ways hidden by our measurement instruments.) I’ve written a bit on this in the context of the Census, SPD 15, and the ways that our tools have changed over time.

There are variations available for specialty uses, but here’s what the standard new data collection will look like:

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“Federal court rejects congressional redistricting challenge as state lawsuit awaits Florida Supreme Court”

The Tributary:

A three-judge federal panel unanimously upheld a controversial congressional map backed by Gov. Ron DeSantis, despite accusations he and the Legislature discriminated against Black voters.

The judges agreed that the plaintiffs failed to show the Legislature was discriminating when it approved Gov. DeSantis’ map.

“It is not enough for the plaintiffs to show that the Governor was motivated in part by racial animus, which we will assume without deciding for purposes of our decision,” the court wrote. “Rather, they also must prove that the Florida Legislature itself acted with some discriminatory purpose when adopting and passing the Enacted Map. This they have not done.”

The lawsuit targeted DeSantis’ efforts to dismantle a congressional district in North Florida, a district that enabled Black voters to elect their preferred candidates for three decades.

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Amid SCOTUS’s Continued Silence, Federal District Court in South Carolina Racial Gerrymandering Case Will Allow Congressional Election to Go Forward Under District It Held Illegal

Here is the order:

The present circumstances make it plainly impractical for the Court to adopt a remedial plan for Congressional District No. 1 in advance of the military and overseas absentee ballot deadline of April 27, 2024 mandated under federal law and the party primaries scheduled for June 11, 2024. Having found that Congressional District No. 1 constitutes an unconstitutional racial gerrymander, the Court fully recognizes that “it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under an invalid plan.” Reynolds v. Simms, 377 U.S. 533, 585 (1964). But with the primary election procedures rapidly approaching, the appeal before the Supreme Court still pending, and no remedial plan in place, the ideal must bend to the practical.

I believe this moots the pending motion at the Supreme Court to order the lower court do to the same thing.

This case was argued at SCOTUS on the merits in October. That we don’t have a ruling yet likely means there’s likely to be some dissents coming from whatever the Court is going to do on the merits.

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“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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