“A state judge in New York has ruled that that state’s version of the Voting Rights Act violates the equal protection guarantee of the Fourteenth Amendment” by pressuring local governments to engage in race-based gerrymandering, notes election-law expert Walter Olson of the Cato Institute. Voting Rights Acts place pressure on localities to give racial and ethnic minorities proportional representation on city and county councils. This pressure
can create incentives for localities to begin sorting and discriminating by race in election matters—stretching district lines to engineer desired racial outcomes, for example—and that in itself can be unconstitutional.
Meanwhile, as a practical matter, VRA lawsuits and their threat give private litigation groups real leverage over local election administrators, who frequently offer concessions not required by law rather than be dragged [into a costly lawsuit].
For these and other reasons, the Supreme Court in a series of cases has seen fit to trim back somewhat the breadth of VRA liability. Opponents…have cried foul and pushed for Congress to expand the law. While those bills may have stalled, they have enjoyed more success in a campaign to get states to enact their versions of the VRA. Depending on the drafting, these mini-VRAs in some cases restore elements struck from the national VRA by federal courts, sometimes extend the laws in new directions, and sometimes create new standards of proof more favorable to complainants…So far eight states have enacted these junior VRAs: California, Connecticut, Illinois, Minnesota, New York, Oregon, Virginia, and Washington….
Now a New York state judge has ruled that that state’s mini-VRA violates the US Constitution. The case arose from a suit against the Town of Newburgh….Like many towns, it had gotten sued over a longstanding practice of holding elections at large, that is to say, with all candidates running town-wide rather than in districts or under other arrangements that might enable a minority of voters to win one or more seats by voting together. The suit was filed under the John Lewis Voting Rights Act of New York (or “NYVRA”), which prescribes standards friendlier to plaintiffs than the federal law. In particular, it dispenses with the requirement, in applying what election lawyers call the Gingles standard, that a minority population be shown to be geographically cohesive. Also, it treats more favorably so-called “coalition” claims that could allow plaintiffs to combine into a single winner claims that would have failed separately on behalf of different minority groups.
Those were critical changes, reasoned Judge Maria Vazquez-Doles, because the federal standards had survived Supreme Court scrutiny over a series of cases only because [they] did not go so far as to induce localities to infringe the equal protection rights of other groups, including groups not represented in the courtroom. By striking the balance in a more plaintiff-friendly place, New York was [forcing] towns to abridge other rights that the court had made clear were of constitutional stature.
It is not just cities and counties that object to these expansive state versions of the Voting Rights Act. Nonprofits and citizens have filed court briefs raising constitutional objections to California’s state VRA over how it subjects local government to racial-dilution lawsuits that would be rejected under the federal VRA. The Supreme Court denied a petition seeking review of a liberal federal appeals court ruling upholding the California law.
Judge Vazquez-Doles’s ruling in Clarke v. Town of Newburgh is being challenged in an expedited appeal to New York’s appellate division, and could be reversed on appeal.
Putting aside potential constitutional problems with VRAs, they also create practical headaches for even ideologically sympathetic election officials. In Michigan, county administrators lamented the “heavy burden on local clerks” a proposed state VRA would impose. Lansing clerk Chris Swope told the legislature, “If you had told me a year ago that I would ever testify in opposition to anything called a voting rights bill, I would have laughed in your face.” He cited “concerns about penalties against communities that fail to follow the legislation as proposed, particularly for reasons related to simple human error rather than a malicious attempt to suppress voters.”
