In a decision this morning, the New York Court of Appeals unanimously ruled against the town of Newburgh, the defendant in an ongoing vote dilution case under the New York Voting Rights Act (NYVRA). Newburgh argued that the NYVRA’s vote dilution provision violates the Equal Protection Clause because, to comply with the law, jurisdictions must consider race. The court declined to address Newburgh’s merits argument, holding instead that, as a municipality of New York, the town lacks the capacity to mount a facial constitutional challenge. Harvard Law School’s Election Law Clinic represents the plaintiffs, and I argued the case before the court.

This case presents the question whether the Town and Town Board of Newburgh— subordinate governmental entities created by, divisible by and even extinguishable by the State Legislature—can maintain this facial constitutional challenge to the vote dilution provision of the New York Voting Rights Act (“NYVRA”) (codified at Election Law § 17-200 et seq.). They cannot. . . .

Plaintiffs allege that (1) voting patterns in Newburgh are racially polarized and (2) the at-large election system effectively disenfranchises Black and Hispanic voters, who cannot elect candidates of their choice or influence the outcome of elections. Plaintiffs seek a declaration that Newburgh’s use of an at-large election system violates Section 17-206 and an injunction ordering Newburgh to implement either a districting plan or an alternative method of election for the 2025 Town Board election.

Newburgh moved for summary judgment on the bases that (1) Section 17-206 is facially unconstitutional because it violates the Equal Protection Clause of both the U.S. and New York Constitutions and (2) its Town Board elections comply with the NYVRA. . . .

The longstanding rule in New York is that political subdivisions—as creatures of the State that “exist[] by virtue of the exercise of the power of the State through its legislative department”—cannot sue to invalidate State legislation (City of New York v State of New York, 86 NY2d 286, 289-290 [1995] . . . .

Just as the legislature has the power to create entities to perform its functions, it has the power to change, and even destroy, those entities. Separation of powers principles accordingly demand that courts do not interfere in legislative disputes raised by legislative subordinates. Those principles are the bedrock of our federal and State Constitutions alike. . . .

Newburgh’s challenge to the NYVRA does not fall within the dilemma exception. Whatever might be said as to a municipality’s ability to bring an as-applied challenge, showing that it will be forced to take a course of action that is unconstitutional, Newburgh is pursuing a facial invalidity claim. . . . For a facial constitutional challenge, principles of “judicial restraint” (World Trade Ctr., 30 NY3d at 385) counsel strongly against permitting subordinate units of state government from using the judiciary to second-guess the wisdom of enacted legislation. A municipality’s authority to raise a challenge to a State law is at its lowest ebb when that challenge is a facial constitutional challenge, seeking to invalidate a statute in all possible applications, not merely because it allegedly placed the particular municipality in an allegedly untenable position. . . .

Newburgh’s arguments about why we should hold that it meets a dilemma exception fail to persuade us. Newburgh has not shown that compliance with the NYVRA would force it into taking an unconstitutional action. The litigation has yet to even proceed to trial, making presently unknown: (1) whether Newburgh would face any liability; and (2) in the event it did, what a court would require it to do. The NYVRA’s vote-dilution provision leaves courts wide latitude in designing remedies, so that to prevail on its facial challenge, Newburgh would have to show that “every conceivable application” of the NYVRA—i.e., every possibly remedy a trial court could order—would force it to take an unconstitutional act . . . .

Newburgh contends that because, in its view, the NYVRA violates the U.S. Constitution, the Supremacy Clause overcomes New York’s bar prohibiting its subordinate local governments from suing it. Newburgh offers no authority for that novel proposition, which would authorize every local governmental entity to sue to challenge as unconstitutional any State legislation arguably affecting that subordinate entity. . . .

Newburgh argues that “any alteration of its race-neutral, at-large election system in order to comply with the NYVRA’s vote-dilution provisions would be unconstitutional.” But that contention, as explained by counsel at oral argument (see oral argument tr at 8-12), rests on the proposition that a mere finding of liability itself would place Newburgh in the position of violating the Constitution or obeying the order of the court—when there is no order of the court compelling it to do anything. And in any event, several of the potential remedies mentioned by the NYVRA to redress a finding of vote dilution—such as longer polling hours or enhanced voter education—cannot reasonably be described as alterations of an at-large election system.