As 2023 comes to a close, the Voting Rights Act is facing a series of dire threats that could significantly weaken the landmark civil rights law.
A suite of three different pending cases could gut the ability of private plaintiffs to challenge the Voting Rights Act, make it harder to challenge discriminatory election systems, and limit the Voting Rights Act’s protections in areas where a single racial minority doesn’t constitute a majority.
Tag Archives: Voting Rights Act
“Here are the redistricting disputes shaping the battle for House control”
Election Day 2024 may still be 11 months away, but the first stage of the battle over control of the House is underway, with redistricting fights being waged in courtrooms from Louisiana to New York.
In a dozen states, congressional maps drawn after the 2020 Census have been challenged under federal voting rights law and the U.S. Constitution, leading to drawn-out legal battles in some states over the redistricting plans they began crafting in 2021. Disputes in Georgia, Louisiana and Alabama, in particular, have been closely watched, as Democrats could pick up a seat in each of the states.
“All are places where districts are at play, and it still remains unclear in a lot of these places whether there are changes that will result in Republican-drawn gerrymanders being undone,” said Kareem Crayton, a redistricting expert at the Brennan Center for Justice.
“Legal challenges to the Voting Rights Act continue into the new year”
Hansi Lo Wang on NPR:
The landmark Voting Rights Act has had a wild year in the courts. In 2024, ongoing legal challenges are threatening to make it harder to protect the voting rights of people of color (4-minute listen).
“Federal judges order 13 Michigan House and Senate districts redrawn”
Opinion here, and excerpt below from the Detroit News:
Lansing — Federal judges have declared 13 of Michigan’s House and Senate districts unconstitutional and ordered them redrawn, overturning a key portion of the maps drawn in 2021 by Michigan’s inaugural Independent Citizens Redistricting Commission.
The three-judge panel ordered the Secretary of State to refrain from holding elections in those districts until they are redrawn in compliance with the Equal Protection Clause of the U.S. Constitution. . . .
“We’re thrilled that the court unanimously ruled that the challenged districts are illegal and that Black voters in Detroit were disenfranchised,” said John Bursch, an attorney for the Black Detroiters who challenged the maps. . . .
[P]laintiffs have argued that the experts guiding the commission consistently pressured its members to lower the number of Black voters in Metro Detroit House and Senate districts out of an effort to “unpack” past districts and achieve better partisan fairness scores across the state.
The result, the plaintiffs argued, was a dilution of the Black vote across spaghetti-like districts that stretched from majority-Black Detroit into majority-White suburbs in Oakland and Macomb counties.
The Voting Rights Act requires that when there is a large, compact minority — such as the Black population in Detroit — those voters cannot be broken up into largely White districts where their votes are diluted and where they are unable to elect a minority-preferred candidate.
The Equal Protection Clause largely bars states from drawing district maps that sort voters primarily by race.
Michigan’s redistricting case is unique because, unlike processes led by the majority party of the Legislature, the citizens commission documented every decision in a transcript that runs about 10,000 pages, noted Kethledge, an appointee of Republican former President George W. Bush. That transcript is quoted continuously throughout the federal court ruling. . . .
In many cases, the commission lowered the Black voting age population between 35% and 45% for legislative districts in a city whose African American population is nearly 78%, with little to no primary data showing a Black-preferred candidate could make it through a primary with those concentrations.
Hat tip: Derek Clinger of the State Democracy Research Initiative at the University of Wisconsin Law School
“Judge pledges quick turnaround on Georgia redistricting maps”
U.S. District Judge Steve Jones took nearly two years to issue his October order that struck down Georgia’s political maps. He’s working on a far tighter deadline to render his verdict on redrawn congressional and legislative maps.
Jones said during a Wednesday hearing that state officials informed him redistricting must be completed by Jan. 16 to be ready for next year’s voting. Later, state attorney Bryan Tyson said elections staffers need the maps by Jan. 29.
“Voting rights groups file sweeping lawsuit against NC redistricting plans”
Voting rights groups in North Carolina filed a sweeping redistricting lawsuit Tuesday that claims the Republican-led legislature violated federal law by racially gerrymandering the state House, state Senate and congressional plans for election districts.
The suit by the state NAACP, Common Cause and eight Black voters says that the election districts violate the federal Voting Rights Act and the U.S. constitutional amendments that prohibit racial discrimination.
“Voting-rights groups sue over new Ohio elections law”
COLUMBUS, Ohio — In a new federal lawsuit, voting-rights groups say that a recently passed Ohio law which makes it a felony for someone other than a postal worker or a close relative to handle someone’s absentee ballot illegally discriminates against disabled people.
“Georgia redistricting tests if the Voting Rights Act protects ‘coalition districts’”
NPR:
NORCROSS, Ga. — Anthony Pacheco is Latino, but for the last several years he has worked as a community organizer at the nonprofit Asian Americans Advancing Justice-Atlanta.
More than once, people have asked him why.
“I see a lot of parallels between Latinx communities and Asian American communities here in Gwinnett County,” Pacheco says, in a conference room just off the main hall of the public library, where the shelves are lined with books in Spanish, Vietnamese, Korean and Mandarin.
Pacheco says Gwinnett County is a place where many cultures mesh. “Where I get my haircut, it’s a Vietnamese place,” he says.
This week, about 20 miles southwest at the federal courthouse in Atlanta, a judge is considering whether the federal Voting Rights Act protects communities like this one — so-called “coalition districts” where together, Black, Latino and Asian American voters form a majority.
“A lawsuit by Latinos in Kansas claims their city’s election method is unfair”
WaPo:
DODGE CITY, Kan. — For the past 13 years, Hector Almendarez has picked up his hard hat every workday and driven down Wyatt Earp Avenue — passing the Cowboy Capital Saloon & Grill and the Boot Hill Museum, where visitors drink sarsaparilla from the Long Branch Saloon – to work his shift at a nearby meatpacking plant.
He is one of thousands of Hispanic immigrants who have come to this city of 27,000 in Southwest Kansas over the past four decades to work in one of its plants. Known for its cowboy culture and as a symbol of the Western frontier, Dodge City, a quintessential emblem of an older, Whiter America, is now 65 percent Latino, according to U.S. Census data.
But despite its changing demographics, Dodge City’s city commission – the local body in charge of enacting policies that affect its residents most directly, including housing, transportation, and education – remains nearly all White. Almendarez, who makes rounds at his plant registering fellow Latino citizens to vote, believes the commission’s membership might better represent the city’s diversity if its five members were elected from local neighborhoods. Instead, every commissioner is elected city-wide rather than by just one district. Two Latino residents are suing over the practice.
“How Leonard Leo’s Dark Money Network Orchestrated a New Attack on the Voting Rights Act”
Ari Berman in Mother Jones:
On November 20, a three-judge panel on the 8th Circuit Court of Appeals ruled that private plaintiffs could not bring lawsuits to enforce Section 2 of the Voting Rights Act, the key remaining provision of the landmark civil rights law, which prohibits voting practices and procedures that discriminate against voters of color. “The statute is silent on the existence of a private right of action,” wrote Judge David Stras of Minnesota, who was appointed by Donald Trump. Stras’ opinion represented the latest salvo against voting rights by the dark-money network linked to Federalist Society co-chair Leonard Leo. . . . As Judge Lavenski Smith, an appointee of George W. Bush who is the only Black judge on the 8th Circuit, noted in his dissent, of the 182 successful Section 2 cases over the past 40 years, only 15 were brought solely by the attorney general. If voting rights litigation were dependent on the Justice Department, it would slow to a trickle—or, under a hostile administration, to a halt.
“Why Alabama’s Congressional Maps May Need to Be Redrawn, Again”
N.Y. Times previews new federal court hearing in the aftermath of the Supreme Court’s ruling that affirmed the invalidation of the previous map under the Voting Rights Act.
“In the new map, Republicans chose to increase the percentage of Black voters in one of the state’s six majority-white congressional districts to about 40 percent from about 30 percent, ignoring an outcry from Democrats and Black residents. …
“The panel of judges will convene in Birmingham on Monday for a hearing to decide whether the map should remain in place.”
An Academic Elegy
Guy-Urïel Charles and Luis Fuentes-Rohwer, have a new piece in the Iowa Law Review. I offered a commentary, here. Just to give you a flavor for the piece is, here’s a brief excerpt from my introduction, which offers a rough summary of their argument:
It feels like a moment. I know I’m supposed to analyze this piece from a purely academic perspective, but first I want to mark the occasion. Guy-Urïel Charles and Luis Fuentes-Rohwer, two of the most astute commentators on the intersection of election law and civil rights, think it’s time to give up on Section 5 of the Voting Rights Act (“VRA”), perhaps it’s even time to give up on the civil-rights paradigm altogether. When I assigned this paper to my class, one of the students said that she realized it’s time for her to start mourning the Voting Rights Act because it’s never coming back.
For me, the mourning process began when Shelby County v. Holder came down. But until I’d read “The Voting Rights Act in Winter: The Death of a Superstatute,” I’d been a naïve cynic (or a cynical naïf). I’d hoped that I wasn’t being hopeful enough. But when the always-wise and ever-optimistic Guy Charles—the academic who insisted in 2006 that the civil-rights community should reject the renewal act and try for better—tells us that something’s over, it’s probably over. When the duo that valiantly tried to lay the groundwork for rebuilding Section 5 tells you it’s time to chart a different course, it’s probably time to chart a different course.
None of this will be easy to hear if you still subscribe to the political consensus that animated the Voting Rights Act, if you believe that Section 5 was the crown jewel of the VRA, if you think that we still need an administrative alternative to costly litigation for race-based voting claims. Now feels like an especially hard time to hear that we must set aside the race-discrimination model given how large Ferguson and Garner loom. Which is why it takes a certain kind of courage to write what Charles and Fuentes-Rohwer have written here. If you think it’s hard to hear these things, just imagine how hard it is to write them, at least for people who haven’t spent their careers playing the studied contrarian.
Academic pieces are strange creatures, and they aren’t well suited for elegies. Yet this feels like one to me. Academics are strange creatures themselves. Perhaps, then, it’s not surprising that an elegy by two scholars would come in the form this one does: the systematic, clear-eyed, and relentless documenting of the death of a superstatute. It feels like the scholarly equivalent of a doctor calling it when the patient’s heart has stopped.
Perhaps because this is an elegy wrapped in a piece of scholarship, some readers will offer the conventional academic critique and say that there are really two articles here. The first half of the Article charts the death of a superstatute, and the second imagines a new future for voting rights.
At first glance, the two subjects seem unrelated. The first half enters into a conversation (carried on mostly by my colleagues at Yale) about what Ernie Young has called “the constitution outside the Constitution” — those sturdy, stable programs and principles that constitute our society even if they are not enshrined in our Constitution’s text. The death of a superstatute is an understudied topic precisely because superstatutes aren’t supposed to die. The second half of the Article, meanwhile, continues a conversation that the field of election law had been having ever since the oral argument in Northwest Austin Municipal District No. 1 v. Holder (“NAMUDNO”), one that is more pragmatically focused on identifying a framework for resolving elections claims. That conversation is not nearly as wide-ranging or theoretically oriented as the one on superstatutes. Election law scholars, after all, are trying to come up with a regulatory scheme at the intersection of what Congress can pass and what the Court can accept, and it may well be a null set. These are different conversations, and it’s no wonder that the two halves of the Article read so differently.
While I have something to say about each part of the Article, I think the two pieces are much more closely related than that. To be sure, the effort to chart the death of a superstatute is interesting standing alone and generates its own cache of insights, as I note below. But this argument serves a larger purpose here: It reminds you how much work it takes to maintain a superstatute in the first place. Those who resist the premise of the second half of the Article—that it’s time to chart a new course—must first grapple with the truths in the first half of the Article. As the authors show, it was a huge lift to get three branches of government to work in conjunction with one another to support Section 5. For those who think that all we need is a fifth vote on the Supreme Court to restore Section 5 to her old glory, Charles and Fuentes-Rohwer remind us just how many times the Court and Congress and the Executive Branch had to bend over backwards not just to keep the old girl alive, but to maintain Section 5 as a vibrant regulatory framework. This analysis will be sobering to those who want to cast Shelby County simply as a 5–4 ruling rather than part of a political sea change. Indeed, the first half of the Article makes clear just how far these tides have receded. While the two halves of the Article are quite different, then, they plainly work in tandem and deepen the authors’ argument along almost every dimension.
The VRAA and the Future of Voting Rights Enforcement
For those following today’s hearings, I have an editorial today in the National Journal. It notes the continuities between the VRAA’s enforcement strategy and that used in other regulatory arenas, something I’ve written about in the past. It also draws upon Ellen Katz’s great piece on Section 5 enforcement in South Carolina.
Texas shows Congress must update the Voting Rights Act
Thanks to Rick for inviting me to serve as a regular contributor at the Election Law Blog!
Click here for my latest at The Huffington Post.
An excerpt: “A recent court action against Texas is important, but it should not fool us into believing that existing laws are sufficient to protect voting rights. Indeed, the central lesson from Texas is that Congress must update the Voting Rights Act.”