This is a big week for voting rights oral arguments. Yesterday, before the New York Court of Appeals, I argued on behalf of the plaintiffs in Clarke v. Town of Newburgh, a challenge to the town’s at-large electoral system under the New York Voting Rights Act. The Town argues that the NYVRA violates the Equal Protection Clause, and much of the argument focused on federal constitutional issues. Here are some excerpts from our brief:

Given precedent and practice, this analysis also has only one possible conclusion: considering race to prevent or remedy a breach of an antidiscrimination law is perfectly permissible. In the voting rights context, the U.S. Supreme Court said so just two years ago. “[F]or the last four decades, this Court and the lower federal courts … have authorized race-based redistricting as a remedy for state districting maps that violate § 2 [of the federal VRA].” Milligan, 599 U.S. at 41 (emphasis added). . . .

Past practice confirms that these cases mean what they say. Over the years, hundreds of jurisdictions have taken race-conscious steps to avoid or cure violations of the federal VRA and state VRAs. Countless more public and private entities have considered race to comply with the disparate-impact bans of Title VII, the Fair Housing Act (“FHA”), and New York’s own Human Rights Law. No court has ever suggested that all these “alteration[s] of … race-neutral … system[s]” were unconstitutional. App.-Br. 68. But that is the untenable implication of Appellants’ stance: that the country’s and New York’s civil rights laws have led to unconstitutional conduct on a massive scale for more than half a century. . . .

Under these principles, the NYVRA’s vote-dilution prohibition plainly does not classify by race. It does not set forth one rule for members of one racial group, and another for members of a different racial group. To the contrary, as the Appellate Division noted, “members of all racial groups, including white voters, [may] bring vote dilution claims.” A19. Of course, this part of the statute mentions race-related concepts. But the whole point of Skrmetti is that a mere reference to a suspect classification does not trigger heightened scrutiny. The only basis on which the NYVRA’s vote-dilution prohibition does classify is satisfaction of the statutory elements of liability (racially-polarized voting or impairment under the totality of the circumstances, the existence of a reasonable alternative policy, and the lack of adequate existing representation). Municipalities—not individuals—are sorted into groups based on whether they meet these criteria. This may be a complex statutory classification. But it is not a racial classification.