This week- NY Democratic Congressional Delegation Sends Letter, Explainer on VRA & 14th Amendment, Voting Rights Act Litigation, NY Attorney General Preclearance Activity, Congressional Elections May Depend on Turnout
REDISTRICTING
Leader Jeffries & New York Congressional Democrats Ask Albany Leaders for Expanded Voting Rights Protections
Democratic U.S. House Leader Hakeem Jeffries and Democratic Members of the New York Congressional Delegation sent a letter to Governor Kathy Hochul, Speaker Carl Heastie and Senate Majority Leader Andrea Stewart-Cousins asking them to strengthen the New York Voting Rights Act by extending the full protections of that law to congressional representation in New York and take any other actions to protect the integrity of our elections.
The letter said that “(t)he toxic effort to obliterate what remains of the (federal) Voting Rights Act threatens to disenfranchise millions of people in our state and requires an immediate response. Our state recently enacted the John R. Lewis Voting Rights Act of New York to protect free and fair elections. In light of the nationwide assault on the Voting Rights Act of 1965, it is imperative that the protections of the NYVRA extend to every single congressional district in New York. Absent such action, the people of our state are vulnerable to the nationwide effort to disenfranchise communities of color and rig the congressional map.”
The New York State Constitution already protects congressional districts from being drawn that dilute minority voting strength. The constitution includes language requires the state redistricting commission to “consider whether such lines would result in the denial or abridgement of racial or language minority voting rights, and districts shall not be drawn to have the purpose of, nor shall they result in, the denial or abridgement of such rights. Districts shall be drawn so that, based on the totality of the circumstances, racial or minority language groups do not have less opportunity to participate in the political process than other members of the electorate and to elect representatives of their choice.”
The state Voting Rights Act enacted in 2022 prevents minority dilution by local governments and does not apply to congressional and state legislative redistricting.
The letter also urged the state leaders to take immediate action to protect voters, referencing the U.S. Supreme Court re-hearing a case concerning a majority-Black congressional district in Louisiana be reargued. They also pointed to the U.S. Court of Appeals for the Eighth Circuit decision to eliminate the ability of individual voters to challenge voting rights violations through a private right of action and the Trump Justice Department’s view of the federal Voting Rights Act (following a recent DOJ letter to Texas officials that sparked the Texas mid-decade redistricting effort).
Read the Democratic Delegation Letter here: http://bit.ly/4mTnB3e
Balancing The Voting Rights Act and the 14th Amendment Ban on Racial Gerrymandering
Section 2 of the Voting Rights Act (VRA) prohibits any redistricting plan that dilutes the voting power of minorities. Since the U.S. Supreme Court’s Thornburg v. Gingles (1986) decision, plaintiffs preliminarily meet that standard by proving three conditions: the minority group must be large and compact enough to form a district, it must vote cohesively, and the white majority must usually defeat the minority’s candidate of choice. When those “Gingles preconditions” are satisfied, federal courts often order the state to draw an additional majority-minority district.
The Equal Protection Clause of the 14th Amendment, however, takes a different approach to race in line-drawing. In Shaw v. Reno (1993), the Supreme Court held that districts whose shapes are “unexplainable on grounds other than race” trigger strict scrutiny, the toughest constitutional test. Miller v. Johnson (1995) refined the rule: if race is the predominant factor and the map is not “narrowly tailored” to a compelling interest, the plan is an unconstitutional racial gerrymander. The Court listed compliance with the VRA as a compelling interest that can justify using race, but only when the state has “good reasons” to think Section 2 requires it.
Balancing Act
Since then, the Court has tried to balance the two commands. In Cooper v. Harris (2017), it struck down two North Carolina districts, finding the state had invoked the VRA without evidence that additional Black-majority seats were legally necessary. By contrast, Allen v. Milligan (2023) affirmed that Alabama had to add a second majority-Black district because the Gingles test clearly showed vote dilution. Together, the cases suggest that a state may consider race only to the extent necessary to avoid a proven Section 2 violation, no more and no less.
Do the two doctrines actually conflict? Many scholars say they are in tension but not irreconcilable. Columbia law professor Travis Crum calls the framework “a riddle,” yet notes that strict-scrutiny review still leaves room for VRA compliance, but only when supported by evidence. In practice, the doctrines have coexisted: Section 2 supplies the why for creating certain minority opportunity districts, while the 14th Amendment polices the how, insisting those districts be no more race-based than necessary.
LITIGATION
Westchester County: Serratto et al. V. Town of Mount Pleasant (N.Y. Voting Rights Act)
In this ongoing state voting rights action alleging that the at-large town board prevents minority preferred candidates from being elected, plaintiffs filed for the opportunity to renew and reargue their motion for summary judgment on the standard for demonstrating racially polarized voting under the New York Voting Rights Act (NYVRA).
On August 11th, the defendants filed briefings in opposition to plaintiffs’ motion. First, in their opposition defendants argue that plaintiffs’ motion does not present a valid basis for re-argument because the issue plaintiffs raise has been extensively briefed to the Court. Defendants argue that there is nothing new or overlooked by the Court, nor any changes in the law, so plaintiffs should not have successive opportunities to reargue.
Second, defendants argue that based on their interpretation of the statute, plaintiffs’ arguments fail on the merits because defendants find Election Law § 17-204(6) unambiguous. Defendants interpret the NYVRA as a comparison between the choices of Hispanic voters to the choices of the “rest of the electorate”. Defendants define “rest of the electorate” as non-Hispanic voters of all races and ethnicities- not just White voters. Third, defendants argue that even if the Court adopts Plaintiffs’ position, they are still not entitled to summary judgment because there are further issues that necessitate trial and cannot be decided on a summary judgment motion.
On August 15th, plaintiffs filed briefings replying to defendants’ opposition. First in their reply, plaintiffs argue that the Court’s prior interpretation of ambiguous language in Election Law § 17-204(6) was inconsistent with the Legislature’s intent because the NYVRA was modeled after the California and Washington VRAs, therefore “rest of the electorate” should have the same meaning. Further, plaintiffs argue the Court’s new standard for proving racially polarized voting under the NYVRA unfairly penalizes those in non-Hispanic minority groups and weakens the NYVRA’s ability to detect and prevent vote dilution because it lowers the measured level of racial polarization.
Second, plaintiffs argue that reargument is needed under the current circumstances of the case because the specific issue here was barely addressed by the parties in their summary judgment briefs, the defendants’ experts were not properly directed to analyze racially polarized voting using the current standard, and Clarke v. Newburgh clarified the law. Third, plaintiffs argue that they are entitled to summary judgment if this Court applies the correct standard for demonstrating the existence of racially polarized voting based on the evidence of racially polarized voting combined with the evidence that there are alternative practices that would remedy the effects of voter dilution.
VOTING RIGHTS ACT
N.Y. Attorney General’s Office Preclearance
741 Albany County BOE- poll site locations- granted
721 Nassau County BOE- poll site locations- granted
All submissions can be viewed at: https://nyvra-portal.ag.ny.gov/
ELECTIONS
Congressional Voting May Depend on Turnout
An analysis by Athan Yanos in the August 23rd Albany Times Union reports that “(a)ccording to the Cook Political Report, four of New York’s congressional races are considered competitive, which is the second most of any state, and three districts flipped from Republican to Democrat last year. At the same time, voter turnout among both parties in New York’s congressional elections is significantly less during midterm elections; and for the last two decades, the party that has been able to best mitigate that drop off has performed better.”
The report also informs that:
-Based on 2006 election numbers, from Ballotpedia, the combined total Democratic and Republican votes during New York’s midterm elections is 35% less than in general elections.
-On average, Democratic voter drop off is 4 percentage points more than Republicans
-Since 2004, the Democratic vote saw a 42% decline in congressional votes cast in the midterm elections after winning the White House. In the years when Democrats lost the last presidential election, they saw a 21% decline in total congressional votes.
-Republican votes have seen a decline of 40% and 18%, respectively.
-the Democrat’s largest voter losses took place in 2014 after President Obama’s 2012 re-election when Democrats received 2 million votes less than in 2012
-Republicans received 1 million fewer votes in 2006 than they did when President George W. Bush was re-elected in 2004.
Read the article here: http://bit.ly/4lLW2YL
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, Esha Shah and Michelle Davis (at redistrictingonline.org).