“Arkansas State Conference NAACP v. Arkansas Board of Apportionment”

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Caroline Walker has written this comment for the Harvard Law Review on the Eighth Circuit’s decision that no private right of action exists to enforce Section 2 of the Voting Rights Act. The comment explores whether plaintiffs might be able to use Section 1983 to enforce Section 2 instead.

Section 1983 enables private parties to enforce a federal statute that creates an individual right, even if the statute itself does not contain a private cause of action. An individual right is enforceable under § 1983 when (1) plaintiffs show that the statute’s text and structure reflect congressional intent to create an individual right and (2) the opposing party fails to show that the statute reflects congressional intent to foreclose § 1983 enforcement of that right. . . .

Under the Supreme Court’s guidance, section 2’s text creates an individual right. Section 2 protects against any “voting qualification . . . standard, practice, or procedure . . . result[ing] in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.” This provision contains “rights-creating” language with an “unmistakable focus on the benefited class” of citizens who hold the equal right to vote. That individual right does not disappear when the statute also “establish[es] who it is that must respect and honor the[] statutory right[].” . . .

Turning to the second prong of the § 1983 analysis, defendants are unlikely to rebut the presumption that section 2 voting rights are enforceable under § 1983. The presumption is rebutted only when “Congress ‘specifically foreclosed a remedy under § 1983.’” Specific foreclosure occurs only when the statute precludes § 1983 enforcement either explicitly or implicitly through “a ‘comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.’” Explicit foreclosure does not pose an issue here, because “[a]ny mention of . . . private remedies . . . is missing” from the VRA’s text, as the Eighth Circuit recognized. . . .

Section 1983 ensures that private individuals and groups can bring a cause of action to enforce their section 2 voting rights in the absence of any Attorney General action. Plaintiffs pleading § 1983 claims to enforce section 2 need only prove the same merits of a vote dilution or denial claim brought under section 2 itself. Section 1983 provides a viable mechanism for plaintiffs and advocates to continue fighting before the courts to protect equal voting rights against antidemocratic attacks.

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“One of the biggest changes ever proposed for Colorado elections is on a journey to this November’s ballot”

alternative voting systems, primaries, voter id, voter initiatives

Colorado Public Radio with more on the proposed initiative to implement a top-four primary with ranked-choice voting for the general election.

Meanwhile, there’s a signature campaign in Maine to get two initiatives on the ballot: voter ID and a repeal of participation in the national popular vote compact.

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“$800,000 wire transfer from billionaire donor to US Chamber raises curtain on dark money”

campaign finance

The lede in The Hill:

The U.S. Chamber of Commerce received an $800,000 wire transfer from billionaire donor Hank Meijer days after it endorsed his son, then-Rep. Peter Meijer (R-Mich.), in a contentious 2022 primary, according to previously unreported internal emails reviewed by The Hill.

. . .

But because the ad — titled “Thank you, Rep. Peter Meijer” — does not explicitly advocate for his election or defeat, the pro-business lobbying giant did not have to legally disclose the donation from Hank Meijer, the co-chair and CEO of the Meijer chain of superstores. It also did not have to disclose any other potential contributions behind the $1.8 million it told the FEC it spent on “electioneering communications” that cycle.

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“Fake Donations Helped a Candidate Get $162,000 From Taxpayers”

campaign finance, chicanery

The N.Y. Times with the report on matching funds in a state Assembly race that’s something of an outlier:

The report also contrasts the state system with the city’s system:

For years, government watchdogs had urged state leaders to adopt a matching-funds system similar to New York City’s long-established version, contending it would amplify small donors’ voices and reduce the influence of big-money interests. Lawmakers, especially long-tenured ones who tend to benefit from institutional donors, were hesitant to make a change.

But in 2020, the Legislature approved a weaker form of the city’s system, settling for one with incumbent-friendly features, far less oversight and fewer safeguards.

The state system is much more generous than the city’s, which matches small-dollar donations at an eight-to-one rate. State candidates in competitive races can get up to $12 in public money for each dollar donated by residents of their district who give from $5 to $50, and smaller matches for sums above that, up to $250.

Yet unlike the city’s program, the state has no spending limits or mandatory audits for all candidates, and does not publish the identity of bundlers, the influential fund-raisers who bring in money from others.

The state also has far more to oversee and fewer resources to do it: Officials must monitor candidates running for more than three times the number of offices — 217 versus 59 — than their city counterparts, despite having fewer than half of the employees and less than a quarter of the budget. State races are also more frequent: Legislative candidates run every two years, compared with every four for City Council.

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