This week: State Court Denies Motion for Summary Judgment in Mt. Pleasant VRA Case; Plaintiffs Seek New Judge in Newburgh VRA Case, Preclearance Submissions; Explainer on Affidavit & Emergency Voting; Update on Congressional Apportionment Challenge
By Jeff Wice, Alexis Marking & Michael Athy
N.Y. VOTING RIGHTS ACT LITIGATION
Westchester County: Serratto v. Mt. Pleasant: VRA Motion to Dismiss Denied
On April 11th, the State Supreme Court in Westchester County issued a decision and order on the plaintiffs’ and defendants’ motions for summary judgment. The plaintiffs sought a declaratory judgment finding that the Town of Mount Pleasant’s “at-large system to elect members of the Town Board dilutes the votes of Hispanic residents in violation of the NYVRA.” Counsel further argued that this violation should be remedied by implementing a plan for district-based voting or another voting method.
Conversely, the defendants (“the Town”) sought dismissal of the complaint and argued that the NYVRA is “unconstitutionally vague” and violates the Equal Protection Clause as applied to this case, that many of the plaintiffs lack standing to commence this action, and that the evidence demonstrates that the Town’s at-large election process does not violation the NYVRA’s vote-dilution provisions.
Ultimately, the Court ruled that the Town failed to affirmatively submit sufficient evidence “demonstrating that the Town is not racially polarized or that, under the totality of the circumstances, the at-large election system employed by the Town did not impair the ability of eligible voters of Hispanic heritage to influence the outcome of local Town elections.” The Court further ruled that the Town did not affirmatively submit evidence to establish that an alternative election system or method of voting “would not result in further equitable access for eligible Hispanic voters, including an enhanced ability to influence the outcome of local elections.” As a result, the Town’s motion for summary judgment was denied.
The Court also denied the plaintiffs’ motion for summary judgment for numerous reasons. First, the Court ruled that the plaintiffs failed to meet their prima facie burden demonstrating racial polarization as a matter of law, “at least as that term is defined by the NYVRA. As stated in the ruling, “While plaintiffs submit strong statistical evidence demonstrating a divergence in the electoral choices of eligible Hispanic voters from non-Hispanic White voters, plaintiffs do not demonstrate such divergence from the ‘rest of the electorate’ as required by the statute, meaning non-Hispanic voters of all races and ethnicities.”
Second, the defendants failed to eliminate all issues of material fact as to whether, under “the totality of the circumstances” factors under § 17-206(3), the at-large voting system impaired the ability of eligible Hispanic voters to elect candidates of their choice or influence the outcome of local elections.
Third, the plaintiffs failed to demonstrate as a matter of law that “there is an alternative practice that would allow the eligible Hispanic voters to more fully participate in the electoral process.” Notably, the plaintiffs’ expert stated that dividing the Town into four districts would always result in one district where Hispanic voters would comprise 31-33 percent of the electorate.
Lastly, the Court ruled that the plaintiffs failed to eliminate issues of fact as to whether an alternative election method (e.g., cumulative, limited, or ranked choice voting) would allow Hispanic voters to “more fully participate” in the electoral process.
Orange County: Clarke et al. v. Newburgh: Plaintiffs Seek New Judge
On April 7th, the plaintiffs filed a letter to request that the Court ask the District Administrative Judge to transfer this state voting rights case to a “Justice who is able to satisfy the requirement of Election Law § 17-216,” which requires that proceedings are expedited and receive an automatic trial preference. The plaintiffs are currently seeking relief for the November 2025 Town Council elections, but the Court cannot schedule a “firm trial date” before July 2026 due to its volume of cases. Counsel had also agreed that they were all available and ready for trial on May 14, 2025.
On April 7th, the defendants (“the Town”) filed a letter in response to the plaintiffs’ request. The Town included five arguments as to why this transfer should not be approved. First, the plaintiffs cite no legal authority “demonstrating that such a transfer at this stage of these proceedings is even permissible.” Second, a transfer would be “counterproductive and inappropriate” at this time because of the judge’s familiarity with the issues in this case.
Third, the request is premature because the Town has moved for permission to appeal to the Court of Appeals and the motion is still pending. Fourth, “the procedural postures of, and positions taken by parties in, other pending NYVRA cases commenced in 2024… support Defendants’ position.”
Fifth, the plaintiffs’ reasoning is “belied” by their prior position in this lawsuit. The plaintiffs have stated numerous times that because the nomination process for candidates for Town office (for the November 2025 elections) begins in or around February 2025, any court-ordered remedies would have to be implemented prior to February 2025 for the relief to be effective. That Town argues that—based on the plaintiffs’ reasoning—because it is April, receiving any “meaningful relief” for the 2025 election is unlikely even with a transfer.
On April 11th, the plaintiffs filed a letter with the District Administrative Judge. The plaintiffs stated that they have appeared before Justice Vazquez-Doles three times (in early February, March, and April) to request a trial date. Despite these attempts, as well as the agreement of all parties to be available for trial starting May 14th, the Court has stated that the earliest trial date available would be July 24, 2026. The plaintiffs argue that this is inconsistent with the automatic calendar preference that this case is entitled to by statute.
The plaintiffs state that “the transfer will not result in any judicial inefficiency” because the Court has not heard any evidence in this case. Additionally, although there is a pending motion for leave to appeal to the Court of Appeals, there is no stay in place or a pending application for a stay. The plaintiffs argue that allowing elections to be conducted each year until the completion of this trial in late 2026 would cause irreparable harm. As a result, the case “can and must be tried expeditiously to satisfy the statutory mandate.” The plaintiffs cite another NYVRA case, NYCC et al. v. Nassau County et al., as an example. Trial was set within two weeks of denying the defendants’ summary judgment motion.
Due to these issues, the plaintiffs requested that the District Administrative Judge transfer the case to a Justice within the Ninth Judicial Circuit who can try the case on the dates to which counsel have already agreed or “on a date shortly thereafter.”
ELECTION LAW
New York City Charter Review Commission Considers Election Law Changes
City & State New York reports that the New York City Charter Review Commission appointed by Mayor Eric Adams are considering changes to the city’s election processes. The changes include moving city elections to even years and to create an open primary for city elections. These changes follow recommendations made by Citizens Union and others in recent commission hearings
Citizens Union also presented testimony on removing a mayor for misconduct, implementing a top-two open primary, and expanding the powers of the city Conflicts of Interest Board (COIB). Their recommendation for a top-two primary system would allow all voters (regardless of party affiliation) to participate in city primaries. The organization also believes that moving city elections from odd-numbered to even-numbered years would increase voter turnout, especially among younger voters, and in communities of color.
LITIGATION
Eastern District of New York (Brooklyn): Walden v. Kosinski et al.
On April 7th, the Eastern District Federal Court granted NYC mayoral candidate Jim Walden’s motion to expedite regarding the timeline for when the appellants’ opening brief, appellees’ brief(s), and appellants’ reply brief are due. The appeal will be heard as soon as possible after the briefing is complete on April 15th.
On April 10th, the New York State Attorney General filed a letter with the Court on behalf of the “State Defendants” (individuals who are being sued in their official capacity) in this lawsuit. The Office argues that (1) Walden’s complaint fails to state a plausible First Amendment claim, (2) the complaint fails to state a plausible Equal Protection claim, and (3) Walden’s First and Fourteenth Amendment Claims are not justiciable.
STATE VOTING RIGHTS ACT
Attorney General Preclearance Submissions
Last week, the Attorney General’s Office granted permission to the N.Y. C. Board of Elections to move forward with an early voting hours request (141) and an early voting poll site request (221). The Attorney General’s office also received requests from the N.Y.C. Board of Elections (281), Suffolk County Board of Elections (261), Nassau County Board of Elections (262), and the Albany County Board of Elections (162) for other election day voting issues. Numbers after the jurisdictions refer to the submission number. All submissions can be accessed at the Attorney General’s Voting Rights Section portal here: NYVRA Preclearance Portal.
VOTING
Explainer: Voting by Affidavit and Emergency Ballots
Several mechanisms are in place to ensure that as many New Yorkers as possible are able to access their guaranteed right to vote. Two of these features are emergency ballots and affidavit ballots.
An emergency ballot is used when a voting machine used for counting ballots breaks down or becomes otherwise inoperable. When this happens, the ballots can still be completed by the voter. Afterwards, they are placed in a designated container for emergency ballots. If the machine is fixed or becomes otherwise operable again by the end of the day, the emergency ballots may be scanned regularly with the supervision of two inspectors and added to the vote totals.
Another important measure to help guarantee access to one’s constitutional right to vote is the affidavit ballot. An affidavit ballot is used when a voter’s name has been removed from the voter roll at the polling place. An example of this is when someone has moved to a new home but has not yet had the time to update their address. If a voter is voting by affidavit ballot, they must swear that they are a registered voter and must provide their current and previous address. Additionally, if the election is a primary election, the voter must provide the party name in which they are enrolled. A voter may also use their affidavit ballot to challenge their party enrollment stated on the voter rolls.
These measures help to account for certain contingencies and grey areas when it comes to voting. They allow for more flexibility in the election process and help to ensure that every New Yorker is able to exercise their constitutional right to vote.
AROUND THE NATION
Louisiana et al. v. Commerce et al: Challenge to Congressional Apportionment Based on Including Undocumented Persons
In January, Louisiana, Kansas, West Virginia, and Ohio’s attorneys general brought a challenge against the Census Bureau for its inclusion of undocumented persons in the decennial congressional apportionment.
On April 10th, a motion to intervene as defendants was filed by the League of Women Voters (LWV), the League of Women Voters of Florida (LWVFL), and the League of Women Voters of New York State (LWVNYS). The proposed intervenors argue they are “entitled to intervene as of right” because (1) the motion is timely, (2) the proposed intervenors have a legally protectable interest, (3) the disposition of this case may “impair” their interests, and (4) the proposed intervenors’ interests are not adequately protected. The memo also argues that the Court should grant permissive intervention in the alternative.
Counsel for LWV, LWVFL, and LWVNYS informed all parties of their proposed intervention and presented their proposed answer to “all parties who have an interest to oppose.” The plaintiffs opposed the proposed intervention, the defendant-intervenors do not oppose (as well as the proposed defendant-intervenor County of Santa Clara), and—as of the time of this writing was filed—the defendants have not stated their position.
On April 11th, in consideration of the stay entered by the Louisiana federal court in this case, the Court struck the motion to intervene by the Leagues. Upon the lifting of this stay, the motion shall be refiled by the Court along with the deadlines for any responsive briefing.
INSTITUTE RESOURCES
The New York Elections, Census and Redistricting Institute has archived many resources for the public to view on our Digital Commons Page.
Our Redistricting Resources page contains resources on the John R. Lewis Voting Rights Act. You can access the page
here: https://digitalcommons.nyls.edu/redistricting_resources/
Archived Updates can be accessed
here: https://digitalcommons.nyls.edu/redistricting_roundtable_updates/
Please share this weekly update with your colleagues. To be added to the mailing list, please contact Jeffrey.wice@nyls.edu
The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund and the New York City Council. This report was prepared by Jeff Wice, Alexis Marking & Michael Athy.