Category Archives: Voting Rights Act

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

judicial elections, Remedies, Voting Rights Act

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”

redistricting, Voting Rights Act

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

redistricting, Voting Rights Act,

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”

redistricting, Voting Rights Act

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

Supreme Court, Voting Rights Act

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”

Voting Rights Act

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”

Voting Rights Act

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”

Voting Rights Act

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

voting, Voting Rights Act

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”

Supreme Court, Voting Rights Act

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”

redistricting, Voting Rights Act

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

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”

judicial elections, Voting Rights Act

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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