Category Archives: Voting Rights Act

Eighth Circuit considers whether the Voting Rights Act allows private parties to sue under Section 2

An Eighth Circuit panel recently heard oral argument (MP3) in Arkansas State Conference NAACP vs. Arkansas Board of Apportionment. It’s an appeal from a district court decision concluding that private parties may not sue under Section 2 of the Voting Rights Act; only the United States may initiate claims.

The three judges hearing the argument were Chief Judge Lavenski Smith, Judge Raymond Gruender, and Judge David Stras. There’s a lot to unpack from the oral argument. It’s quite possible that the district court’s decision will be upheld, and the Supreme Court will be asked to take up the case in the next year. It makes the topics unearthed at oral argument ripe subjects for academic scholarship in the months ahead. (You can of course find much more detail in the briefs, but the argument highlighted, I think, some of the most salient issues for this panel.)

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“Another ‘radical’ change to the Voting Rights Act could reach the Supreme Court”

Tierney Sneed for CNN:

A case that could further shrink the scope of the Voting Rights Act is before a federal appeals court Wednesday, with the appellate panel considering whether private entities – and not just the US Justice Department – can bring lawsuits under a key provision of the law.

If those seeking a narrowing of the VRA are successful, it would significantly diminish the use of the law to challenge ballot regulations and redistricting maps that are said to be racially discriminatory.

A vast majority of the cases that are brought under the Voting Rights Act – which prohibits election rules that have the intent or effect of discriminating on the basis of race – are brought by private plaintiffs, with the Justice Department facing strained resources and other considerations that limit the number of VRA cases it files to, at most, a few each year.

Last year, however, a Trump-appointed federal judge in Arkansas – running counter to decades of legal practice – said that private parties do not have the ability to sue under the relevant VRA provision, known as Section 2.

The US 8th Circuit Court of Appeals – with a three-judge panel made up of all GOP-appointees – will be considering whether to uphold that finding, setting up the potential for another Supreme Court showdown on voting rights.

“DOJ, no matter how staffed up it is, no matter how many resources they apply to this particular endeavor, is simply not going to be able to do the same amount as it could do with the partnership of private plaintiffs here,” said Sophia Lin Lakin, a top American Civil Liberties Union voting rights attorney who is arguing in favor of a private cause of action in the 8th Circuit case.

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“Civil Rights Advocates File Federal Lawsuit Over Mississippi’s Racially Gerrymandered Maps”

Release:

Civil rights advocates today challenged Mississippi’s 2022 state legislative district maps for unlawfully diluting the voting strength of Black Mississippians.

The American Civil Liberties Union, ACLU of Mississippi, Lawyers’ Committee for Civil Rights Under Law; Morgan, Lewis & Bockius LLP, Mississippi Center for Justice, and civil rights attorney Carroll Rhodes are representing the Mississippi State Conference of the NAACP and voters from across the state in the federal lawsuit.

The lawsuit charges that the 2022 maps deny Black residents in areas throughout Mississippi an equal opportunity to participate in the political process and elect candidates of their choice, in violation of Section 2 of the Voting Rights Act of 1965. It also charges that the state gerrymandered certain district lines by improperly using voters’ race, in violation of the U.S. Constitution.

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“Georgia’s Racial Turnout Gap Grew in 2022”

Brennan Center:

As state-by-state turnout data becomes available after the midterms, it’s clear that we remain in a period of high voter participation. Current estimates from the U.S. Elections Project suggest that turnout in the 2022 election was just a few percentage points shy of 2018, when turnout was the highest it had been in any midterm election in the past century.

Still, it’s important to remember that high turnout is not equally shared by all voters. Nonwhite turnout has been consistently lower than white turnout, and the racial turnout gap has widened in jurisdictions previously covered by the Voting Rights Act since the Supreme Court gutted the preclearance condition in 2013.

While most states have not yet provided their official 2022 voter file data with Election Day returns, Georgia has already published this data. Turnout in Georgia is especially worthy of examination, considering that its newly enacted Senate Bill 202 erected multiple barriers to voting in the state.

Brennan Center analysis already revealed that the gap in turnout between white and Black voters in Georgia’s 2022 primaries was the highest it had been since at least 2014. While Georgia saw similar turnout numbers in November compared to the 2018 midterms, our new analysis shows that these racial turnout gaps persisted. In fact, although overall turnout didn’t change much from 2018, this high-level statistic obscures the fact that white turnout went up while nonwhite turnout went down, cancelling one another out, as the figure below makes clear. (See the bottom of this post for a note on data and methods.)…

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“Minority districts drop after redistricting, despite population growth”

Reid Wilson for Plurbius News:

The number of state legislative districts where racial or ethnic minorities make up a majority or a near majority of the population dropped substantially after the latest round of redistricting, even as those minority groups accounted for virtually all of the population growth the nation experienced over the last decade.

An analysis of the demographics of thousands of state legislative districts redrawn in the wake of the 2020 Census conducted exclusively for Pluribus News finds there are 368 districts around the country where Black Americans make up a majority of the population, down from 390 Black-majority districts before new political boundaries were drawn.

The number of districts where Hispanics make up the majority of the population has risen from 249 under the old lines to 258 today. But the number of districts where Hispanics make up between 30% and 50% of the population — a share that would give those populations a strong chance of electing one of their own to state office — declined by 23 seats.

The analysis, conducted by Brian Amos, a political scientist at Wichita State University, examined 6,372 state legislative districts under map lines that were in effect for the 2020 elections and 6,467 districts drawn during the subsequent redistricting process across 49 states. The results do not include Montana, where legislators have yet to draw new state legislative district lines.

The number of districts before and after redistricting varies because of differences in the ways each state draws districts for upper and lower chambers.

The decline in minority-heavy districts is especially stark after the results of the 2020 Census showed minorities making up a much larger share of the American population than they did a decade ago. The U.S. population includes 62 million Hispanic residents, up from just over 50 million a decade ago. There are 41.1 million Black Americans in the United States, up from 38.9 million in 2010.

At the same time, the number of non-Hispanic White Americans — still the largest share of the population by far — fell over the decade, from 223 million in 2010 to 204 million in 2020.

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I Discussed the Supreme Court’s Alabama Redistricting Case (Milligan) on the We the People Podcast with Jeffrey Rosen and Jason Torchinsky

You can listen to the podcast here. Description:

Last week, the Supreme Court heard oral arguments in Merrill v. Milligan. The Court will determine whether Alabama’s 2021 redistricting plan for its seven seats in the U.S. House of Representatives violates Section 2 of the Voting Rights Act of 1965, which prohibits racially discriminatory voting practices and procedures. Joining host Jeffrey Rosen to discuss whether Section 2 and the 14th and 15th Amendments to the Constitution require or forbids congressional districting plans to account for race are Rick Hasen of UCLA and Jason Torchinsky of Holtzman Vogel.

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Oral Argument Analysis of Merrill v. Milligan: Alabama Won’t Get All It Wants in Voting Rights Redistricting Case, But It May Well Get Enough

I listened to this morning’s argument in Merrill v. Milligan, and live-tweeted it here. My sense is that Alabama is not likely to get the Court to adopt its radical approach to rewrite Section 2 of the Voting Rights Act as a race neutral statute, but it might get something almost as good: a reworking of the existing Gingles framework to make it much harder for minority plaintiffs to get full representation in Congressional and other legislative districts.

There did not appear to be any appetite on the Court for Alabama’s constellation of radical arguments, including one that would require proof of racially discriminatory intent to require the creation of a minority opportunity district. That would look radical: the Court would be overturning decades of precedent, beginning with the Court’s 1986 decision in Gingles, which sets up a three-part threshold test for VRA redistricting claims, followed by a look at the totality of the circumstances.

Even Justice Alito, one of the most hostile justices to the VRA was not on board with that. He instead, however, aggressively and persistently pushed a reworking of the first of the Gingles factors in a way that would make it much harder for minority plaintiffs to prevail. It would essentially bring race neutrality in through the back door into that factor.

Justice Ketanji Brown Jackson, new to the Court, aggressively pushed back against Alito, and made very strong points about how Alito’s suggested approach is neither required by the Constitution nor in line with the text, history and precedent regarding Section 2 of the Voting Rights Act. It’s clear that Justices Kagan and Sotomayor are there with her.

Justices Barrett and Kavanaugh, and to some extent the Chief Justice, asked more of clarifying questions, and suggested they had an open mind on the question. (Recall that the Chief Justice, dissenting when a Court majority made up of the other conservative Justices put Alabama’s ruling on hold pending the hearing in this case, said that plaintiffs should win under existing law.) If one just listened to the oral argument, one might think that these Justices are up for grabs in this case. But we know from the oral argument in last year’s Brnovich case that they sounded openminded there too, but fell into line behind Justice Alito’s terrible opinion in that case. That could well happen again here. Indeed, I think that’s the most likely scenario. But it’s not certain.

Justice Thomas said little and I believe Justice Gorsuch did not ask a question (though I missed bits and pieces of argument and may have missed it). But they’ve been on record as saying that the VRA doesn’t even apply to redistricting. They are not going to be votes to help plaintiffs here.

We may not get a decision for a while. But if Justice Alito gets his way, there will be many fewer congressional districts, and state and local legislative districts, where voters of color get to elect representatives of their choice and have meaningful representation in legislative bodies.

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Previewing the democratic casualties sure to accompany SCOTUS OT 23

In advance of next week, Politico offers a thorough preview of the two election law cases on the Supreme Court’s docket this term. Both cases, it notes, are appeals from lower court decisions that threw out political maps drawn by GOP-controlled legislatures. Doctrinal nuances aside, as a practical matter, “the results of the cases could open the door to even more gerrymandering by legislators around the country, and they could also give legislatures even more power within their states to determine rules for voting — including how, when and where voters could cast their ballots.”

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Insightful Preview of Upcoming VRA Case

Linda Greenhouse has written, John Roberts’s Long Game. Is this the End of the Voting Rights Act?–an insightful preview of Merrill v. Milligan, which will be argued on October 4. The lengthy Atlantic article cuts straight to the point:

“The justices have framed the question for this round as ‘whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.’ But the real question, the perilous one underlying that seemingly benign formulation, is this: Is Section 2 itself constitutional?

The rest of the article proceeds to explain the intersections between John Roberts’s early career and the doctrinal backstory. It is too bad she did not directly explain City of Boerne v. Flores (1997) which would bolster why she is right to be concerned, but otherwise I found this a very accessible summary of the stakes.

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“John Roberts’s Long Game; Is This the End of the Voting Rights Act?”

Linda Greenhouse in The Atlantic:

Back in February, in a 5–4 vote, the Court’s conservative majority temporarily blocked the district court’s order; the majority didn’t even deign to issue an opinion explaining its reasoning. The justices’ audacious move freed Alabama to hold November’s congressional elections in districts that the lower court had declared invalid. This went too far even for one of the Voting Rights Act’s best-known critics, Chief Justice John Roberts, who dissented. To resurrect a pungent phrase, his colleagues out-segged him. But it would be a mistake to read his dissent as a sign that he has abandoned a project that has obsessed him since his days as a young lawyer in the Reagan Justice Department.

The most likely explanation for his dissent was that he flinched at the optics: Alabama’s request for a stay had arrived on the Court’s “shadow docket.” Every court maintains an emergency docket to handle matters that can’t wait for a full hearing. But during the Trump years, the Supreme Court exploited this device to hand victories to the president without a full briefing, public argument, or even advance notice.

Although Alabama is 27 percent Black, only one of its seven congressional districts—the one that includes Birmingham—has a Black majority, despite large Black populations concentrated in Mobile and in the “Black Belt” counties that stretch across the state. It may have struck the chief justice that using the shadow docket to preserve this status quo in defiance of the lower court’s decision was an unappealing step, and an unnecessary one at that.

When the justices decide the case, Merrill v. Milligan, this term, they will be free not only to overturn the lower court’s decision, but to rewrite the rules governing how the Voting Rights Act applies to similar cases anywhere in the country. Roberts conceded in his dissent that the district court had correctly followed precedent. He also made it clear that, in his view, the precedent is overdue for revision. As we saw in June, overturning precedent is no obstacle to a majority ready and willing to use its power to get what it wants.

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My New Article Posted on SSRN: “Election Reform: Past, Present, and Future”

I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:

This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.

Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment

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