Category Archives: Voting Rights Act

Must-Read Bloomberg Law Deep Dive: “Voting Rights Claims Plunge in Wake of Supreme Court Decision”

I’ve been waiting to see the results of this study, and it’s consistent with my own research and what I’ve written for my upcoming Yale Law Journal Feature about how Brnovich killed Section 2 vote denial cases:

After the Supreme Court weakened a key piece of the Voting Rights Act, voting discrimination cases are not just harder to bring to court but dramatically so, according to a Bloomberg Law analysis and experts who examined the findings.

Section 2 of the act, which prohibits racial discrimination in voting practices, was nearly 60% less likely to be cited following the court’s ruling in Brnovich v. Democratic National Committee . The decision changed how courts consider whether a law or practice limits someone’s right to vote based on race.

That finding aligns with voting rights groups and some attorneys’ concerns: Brnovich debilitated the most direct avenue to challenge voting discrimination and will have a lasting impact on voting rights.

Law professors, former US election officials, and veteran litigators said the drop-off shows attorneys are searching for other ways to bring such cases, or aren’t bringing them at all.

“We are much more hesitant to bring Section 2 vote denial cases. Period,” said Pooja Chaudhuri, an attorney who represents voters challenging restrictive voting laws at the Lawyers’ Committee for Civil Rights Under Law, one of the nation’s most active voting rights litigation groups.

Bloomberg Law looked at 579 federal voting rights complaints in the four-and-a-half years before the July 2021 Brnovich decision and in the three years and four months after, a period that encompasses the Covid-19 pandemic and two presidential elections. The analysis accounts for the difference in the number of cases filed during those time periods. Redistricting cases, which challenged the boundaries of voting districts, aren’t included because Brnovich didn’t interfere with how Section 2 is used in those cases.

The analysis sheds light on shifting strategies by lawyers bringing allegations of voting discrimination to federal courts.

“Brnovich unquestionably made it much harder to bring Voting Rights Act cases,” said Justin Levitt, an election law expert and professor at Loyola Law School in Los Angeles. He agreed the drop-off in Section 2 cases reflects that.

The National Voter Registration Act and Help America Vote Act, voting rights bills designed to address specific problems and without the broad focus of Section 2, were both cited more frequently following Brnovich. The Civil Rights Act of 1964 was also cited more often following the decision.

Experts agree Brnovich alone isn’t responsible for the difference in the types of cases filed. The number of cases that make up those differences can be small.

Still, Chaudhuri and others say the analysis aligns with their assumptions about Brnovich.

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Georgia: “Secretary of State asks Attorney General to drop DOJ lawsuit over controversial voting law”

WSB:

Georgia Secretary of State Brad Raffensperger is sending a letter to the newly sworn-in United States Attorney General Pam Bondi asking that she “reconsider and withdraw” the lawsuit the Department of Justice filed in 2021.

“When she sees our case, I believe it’s proper for her to dismiss it,” Raffensperger told Channel 2 investigative reporter Justin Gray.

Bondi was just sworn in Wednesday at the White House on the same day Raffensperger sent his letter.

The DOJ lawsuit filed under the Biden administration alleges that Georgia’s controversial election lawsuit SB 202 violates federal law under the Voting Rights Act…..

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ELB Podcast 6:5: Fair Elections and Voting Rights: What Ahead in the Next Four Years? (Gardner, Karlan, Richer)

Season 6, Episode 5 of the ELB Podcast:

What will the new Trump Administration and the new Congress do when it comes to voting rights and fair elections?

What challenges face state and local election officials going forward?

Will the courts stand up for voting rights and fair elections in the years to come?

On Season 6, Episode 5 of the ELB podcast, we feature a discussion with Amy Gardner, Pam Karlan, and Stephen Richer.

You can subscribe on SoundcloudApple Podcasts, and Spotify.

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“Louisiana argues parts of Voting Rights Act are unconstitutional in redistricting case”

When I heard the news of the DOJ backing away from its position in the Callais redistricting case out of Louisiana before the Supreme Court, I realized that I had failed to link to this important story from Jan. 7 in the Louisiana Illuminator about Louisiana’s litigation position in another Voting Rights Act case:

Attorneys representing Louisiana in a lawsuit against the state legislative redistricting plans passed in 2022 are arguing that a key piece of the Voting Rights Act is unconstitutional and should not be applied to the state. 

The case could produce a bellwether decision that impacts Black voting strength in several states where similar challenges have arisen. 

Arguments were presented Tuesday to a three-judge panel of the U.S. 5th Circuit Court of Appeals in the case Nairne v. Landry, in which Black voters are challenging the most recent  legislative redistricting maps as unconstitutional racial gerrymanders. …

Every case brought under Section 2 is likely to be used as a test case for those that seek to have that portion of the Voting Rights Act overturned, advocates have said. 

The U.S. Department of Justice intervened in Nairne in response to the state’s arguments against Section 2 but remained neutral on the other aspects of the case. 

Noah Bokat-Lindell, a DOJ civil rights attorney, argued states cannot get a carveout from a generally applicable statute. For example, they cannot become exempt from the Americans with Disabilities Act because a state argues it doesn’t discriminate against disabled people, he said. 

In a press conference after the hearing, Attorney General Liz Murrill argued that if Section 2 of the Voting Rights Act was ruled unconstitutional, Black voters could still count on the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. 

“Those are legal arguments that we wanted to preserve so that they eventually might make it up to the United States Supreme Court,” Murrill said. “They’ve also been percolating in a number of other cases related to the scope and continuing application of Section 2 to states under current conditions.” 

Let’s watch what Trump’s DOJ does in this 5th Circuit case.

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“Trump Seeks Pause of Supreme Court Cases, Disavows DOJ Stance on Voting Rights Act “

Jimmy Hoover for the NLJ:

In Louisiana v. Callais, the Supreme Court will soon hear appeals to uphold the remedial map by an unlikely alliance of the state of Louisiana and the NAACP Louisiana State Conference and other supporters of the new map, codified as S.B. 8.

In a December brief, the Biden DOJ urged the Supreme Court to “vacate”the lower court’s ruling in light of its “failure to apply the proper” legal framework for racial gerrymandering cases. Former U.S. Solicitor General Elizabeth Prelogar had even sought argument time for her office when the case is heard by the court.

On Friday, however, Harris—a former Williams & Connolly partner—advised the court that she was rescinding the DOJ’s position in the case. 

Following the change in Administration, the Department of Justice hasreconsidered the government’s position in these cases,” she wrote.

“The purpose of this letter is to notify the Court that the previously filed brief no longer represents the position of the United States,” Harris added. “In addition, the United States is withdrawing its pending motion to participate in the oral argument.”…

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Announcing the Winter/Spring Lineup of Safeguarding Democracy Project Events

We’ve got a great lineup of in person, online, and hybrid events!

Alternate text   Tuesday, January 28 
Fair Elections and Voting Rights: What’s Ahead in the Next Four Years? Image   

Register for the webinar here. In-person registration here. Lunch will be provided.
Tuesday, January 28, 12:15pm-1:15pm PT Room 1327 at UCLA Law and online
Amy Gardner, The Washington Post, Pamela Karlan, Stanford Law School, and Stephen Richer, former Recorder of Maricopa County, Arizona. Moderated by Richard L. Hasen (Director, Safeguarding Democracy Project)   

Thursday, February 13 
Finding Common Ground on Modernizing Voter Registration Image   

Register for the webinar here.
Thursday, February 13, 12:15pm-1:15pm PT, Webinar
Christina Adkins, Director of Elections, Texas Secretary of State’s Office, Judd Choate, Director of Elections in Colorado, and Charles H. Stewart III, MIT. Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   

Tuesday, March 4 
What do Documentary Proof of Citizenship Requirements for Voter Registration Accomplish? Image   

Register for the webinar here. In-person registration here. Lunch will be provided.Tuesday, March 4, 12:15pm-1:15pm PT at UCLA Law School Room 1327 and online
Adrian Fontes, Arizona Secretary of State, Walter Olson, Senior Fellow at the Cato Institute, and Nina Perales, Vice President of Litigation, MALDEF (Mexican American Legal Defense and Educational Fund) Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   

Monday, March 31 
Combatting False Election Information: Lessons from 2024 and a Look to the Future 
Image   

Register for the webinar here.
Monday, March 31, 12:15pm-1:15pm PT, Webinar
Alice Marwick, Director of Research, Data & Society, UNC Chapel Hill, Kate Starbird, University of Washington, and Joshua Tucker, NYU. Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   

Thursday, April 10
 Partisan Primaries, Polarization, and the Risks of Extremism
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Register for the webinar here.Thursday, April 10, 12:15pm-1:15pm PT, Webinar
Julia Azari, Marquette University, Ned Foley, Ohio State University, Moritz College of Law, Seth Masket, Denver University, and Rick Pildes, NYU Law School  Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   
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“For 1st time in history, Alabama will have two Black U.S. House members serving together”

Alabama Reflector:

The 2024 election and a court-ordered redistricting led to this result: next year, Alabama will have two Black U.S. House members serving together, for the first time in history. 

Shomari Figures, elected Tuesday night to represent the 2nd Congressional District, will join U.S. Rep. Terri Sewell, D-Bimingham, who has served in the U.S. House of Representatives since 2011 and won her eighth term last week.

Figures wrote in a statement Friday that he understood the history of the district and how that history impacted the opportunity to represent the people in it.

“The opportunity for fair representation is an essential element of democracy, as it affords people from different backgrounds an opportunity to make sure their voices are heard and interests represented,” he wrote.

Sewell said in a statement that the results were about “having people in office who will fight for the issues that matter to us and the values we share.”

“Too many Black voters in Alabama have had their power diluted by unfair congressional maps,” the statement said.  “By sending Shomari Figures to Washington, those voters finally get the chance to claim their seat at the decision-making table. I look forward to having him as a partner in Congress and working on behalf of all Alabamians, especially those whose voices have yet to be fully heard.” 

Alabama’s population is about 64% white and about 27% Black, but Black Alabamians have fought for centuries against voter suppression and disenfranchisement. During Reconstruction, when the state was about 48% Black, Alabama voters sent three men to the U.S. House of Representatives — Benjamin Turner; James Rapier and Jeremiah Haralson — but their terms did not overlap. Sewell and Figures’ districts include areas represented by all three men during the 1870s. Rapier, like Figures, was elected from Alabama’s 2nd Congressional District….

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“Racial Turnout Gap Grew in Georgia — Again”

Brennan Center:

Over the past 15 years, the racial turnout gap in the United States has grown dramatically. A good deal of the widening gap — but by no means all of it — can be attributed to restrictive state voting policies, such as Georgia’s Senate Bill 202, following the Supreme Court’s 2013 decision in Shelby County v. Holder, which hollowed out key protections against racially discriminatory voting rules. Perhaps just as important as formal laws and policies making voting more difficult are features in our democratic systems that leave many Americans of color underrepresented, which leads to disengagement from political participation. Campaign finance laws make it more difficult for low-income Americans to raise the money they need to run for office, the Electoral College reduces the value of most Americans’ presidential votes, and gerrymandered maps keep one party in power. To be sure, there were other reasons voters stayed home this year, like anger over inflation, that can’t be directly tied back to features of our democracy.

To fully explore these dynamics, we’ll need to wait until the national voter file becomes available next summer, along with large postelection surveys. But in Georgia, an important swing state, we already know exactly who cast a ballot in last month’s election, and the trends are somewhat concerning. (Georgia is the first state to release its voter history file, and the other states will follow.) We underscore that these results are preliminary, and it is not clear to what extent they might be true in other states. Nevertheless, understanding what happened in Georgia is important in its own right.

One takeaway is that the gap in turnout rates between white and Black voters in Georgia grew by 3 percentage points between 2020 and 2024 (for a discussion on how we calculated the number of eligible voters in Georgia in 2024, see the methodological note at the end of this piece). That’s roughly equal to how much the turnout gap grew between 2016 and 2020, but looking only at the change in the gap can be misleading. Between 2016 and 2020, turnout among both white and Black voters increased, but it increased more for white voters; that’s what drove up the turnout gap. This year, white turnout went up again in Georgia, but Black turnout declined by 0.6 points. That said, the total number of ballots cast by white and Black voters increased — from 3.16 million to 3.3 million for white voters and from 1.44 million to 1.52 million for Black voters — but the increase among Black voters did not keep up with population increases. All told, Black Georgians would have cast an additional 400,000 ballots if their turnout rate matched that of white Georgians. While we cannot know who these voters would have supported, this number is far larger than President-elect Trump’s winning margin of about 115,000 votes.

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“A voting rights battle in a New York City suburb may lead to a national fight”

Hansi Lo Wang for NPR:

In Nassau County, voters of color and white voters tend to prefer different candidates. And the number of people identifying as white and not Hispanic has dropped more than 11% over the past decade, as Black, Latino and Asian American residents now make up more than a third of eligible voters. But on the current map for the county legislature, those voters of color make up the majority of eligible voters in only four out of 19 districts, or less than a quarter. The map’s challengers argue there should be six such districts….

That change, she hopes, will come through an unprecedented way of directly challenging a local voting map under a state voting rights act — an emerging tool that advocates hope can help fortify the rights of voters of color as opponents continue to chip away at protections against racial discrimination under the federal Voting Rights Act of 1965.

Legal experts, however, warn that critics of state voting rights acts are eager to test the constitutionality of these state laws with the U.S. Supreme Court’s conservative supermajority, and this New York case could spark an appeal that may ultimately lead to the undoing of these protections across the United States.

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