by Jeff Wice & Alexis Marking
REDISTRICTING
Orange County Legislature Rejects Another Map
The Orange County Legislature rejected another county legislative map proposal on August 1st on a 10-8 vote. The map would have advanced to the public hearing stage if the county legislature voted affirmatively. Legislators objected to a map developed by the legislature’s redistricting subcommittee that confirmed with the state’s redistricting criteria and voting rights act. Legislators complained that they needed more information on the mapping process. They also prefer a map that better meets their local district concerns.
The legislature failed to develop a map ten years ago, resulting in a map drawn by a special master. Depending on further developments, any map approved by the legislature after September 22 may become subject to preclearance review under the new state voting rights act by the state Attorney General’s office. Orange County was included in the Attorney General’s preliminary list of localities to be covered under the new preclearance requirements. The County has also objected to being included and has asked to be dropped. The Attorney General’s office is expected to release a final list before preclearance goes into effect next month.
VOTING RIGHTS
Nassau County Legislature: Coads et al v. Nassau County & NY Communities for Change v. Nassau County
On August 5, the state supreme court denied non-party Dr. Sean Trende’s motion in Coads et al. to quash his subpoena and his motion for a protective order in this ongoing challenge to the county legislature’s new map. The court denied the motion except to the extent that the plaintiffs shall limit their inquiry during his deposition. The plaintiffs may not inquire into his expert opinions until after his expert deposition is held. Dr. Trende informed the firm’s legal advice as a redistricting expert and litigation consultant. This decision by the court moots the dispute raised by both parties regarding the deposition of Dr. Trende as a fact witness and then later as an expert witness. Additionally, the court ordered that if Dr. Trende refuses to voluntarily appear for his deposition, his appearance will be compelled.
On August 5, the court denied county defense attorney Misha Tseytlin’s motion to quash his subpoena and his motion for a protective order. This motion is denied except that the plaintiffs may not pose questions related to “Richard Nicollelo’s motivations or deliberations.” According to an order on June 6, Nicollelo may only be deposed regarding the information that was publicly disclosed through the Troutman memorandum and counsel’s testimony at the legislative hearing. Nicolello served as the Nassau County Legislature’s majority leader during the redistricting process.
Stefanik v. Hochul: Court of Appeals Hears Early Voting Case
Oral arguments were heard last week in the New York Court of Appeals in the ongoing legal challenge to New York State’s newly-enacted Early Mail Voting Act. The lawsuit was filed on behalf of the Republican National Committee, New York Republican State Committee, and other Republican organizations in 2023. Although the case has seen legal hurdles in both trial and state court, including a state appellate court dismissing the case, the Court of Appeals will decide whether the act stands. If the act is ruled illegal, New York’s Legislature would need to approve a new constitutional amendment in two separately elected legislatures and then send the question to the voters for approval.
The current law allows voters to vote by mail during an early voting period. Prior to this law, voters were only allowed to vote absentee if they were (1) going to be absent from the county or New York City, or (2) if the voter was unable to vote in person due to a physical disability or illness. The plaintiffs argue the law violates the New York Constitution because the law applies to voters outside of the two groups that the state Constitution allows to vote absentee. The plaintiffs requested the court to declare the law as unconstitutional and block its implementation.
A panel of appellate court justices unanimously voted that universal mail-in voting was “properly implemented through legislative enactment” and does not violate the New York Constitution. Stefanik appealed this decision to the New York Court of Appeals. Since this lawsuit was filed, the mail-in early voting system has continued its rollout. The option was available for the presidential primaries in April and the special election to replace Representative George Santos after he was removed from Congress.
ELECTIONS
State Board of Elections Approved Ballot Language for State Equal Rights Amendment
The state Board of Elections has approved language explaining the proposed equal rights amendment that is drawing fire from critics who claim that the language failed to use terms easily understood by the public.
The proposed amendment is intended to protect abortion rights, but the ballots on the November ballot fail to mention the word “abortion.”
As reported by the Associated Press’ Anthony Izaguirre, “The state’s Board of Elections… decided Monday that rather than try and interpret the amendment, they would simply repeat its somewhat unclear language in material given to voters.
“New York’s Constitution currently says that no person shall be subjected to discrimination based on race, color, creed or religion. The proposed amendment would add to that list: ethnicity, national origin, age, disability and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.”
2024 N.Y.C. Charter Revision Commission Waits to Address Election Issues
The 2024 N.Y.C. Charter Revision Commission (CRC) introduced 5 ballot initiatives for this year in its final report. The report also included a section on issues for future consideration, which included issues of “significant interest” by either members of the public and/or of the Commission, but that “require future study, are not within the Commission’s authority, or for other reasons should be reserved for the future.”
In 2019, at the recommendation of a prior Charter Revision Commission, voters approved electoral changes in the races for Borough President, City Council, Comptroller, Mayor, and Public Advocate. In 2021, primary and special elections for these positions are now conducted through a ranked-choice voting (RCV) system. CRCs in 2003, 2010, and 2018 all considered a RCV system, but 2019 was the first time a ballot proposal was submitted to voters.
Despite its many benefits (e.g., the 2021 primary election had the highest turnout for a mayoral primary in decades), the 2019 Commission heard testimony raising concerns such as a need for “extensive voter education” on the new RCV system and the system’s impact on racial, ethnic, and language minority voters. These issues may need to be addressed through election-related reform. Others have expressed an interest in reform related to “closed” primary elections for City offices, and an additional alternative of a “nonpartisan election.” Advocates for election-related reforms and other alternatives argue that New York City’s current primary system excludes many registered voters from participating in the electoral system in a meaningful way.
Ultimately, the 2024 CRC recommended that election issues be deferred to a future commission for “further study and consideration.” The RCV system has only been implemented for New Yorkers for “one election cycle where citywide offices were decided using this system,” and additional experience with RCV will determine whether changes to improve its operation are necessary or appropriate.
AROUND THE NATION
SOUTH CAROLINA: The American Civil Liberties Union (ACLU), the ACLU of South Carolina, and Duffy & Young LLC have filed a lawsuit to challenge the state’s congressional maps for partisan gerrymandering over District 1 in a state court. The League of Women Voters (LWV) of South Carolina is the plaintiff for the lawsuit. The LWV asks the court to exercise original jurisdiction over the suit, to recognize a protection against partisan gerrymandering in South Carolina’s Constitution, and to block the existing congressional map and redraw congressional districts.
The lawsuit was filed after the U.S. Supreme Court ruled in Alexander v. South Carolina NAACP earlier this year. In Alexander, the ACLU and other plaintiffs argued that Congressional District 1 was a “clear example of racial gerrymandering that used race as a proxy for political party.” To defend the map, South Carolina officials argued that the congressional maps were strictly based on partisan gain, solely using partisan affiliation to determine how to restructure the district. In this lawsuit, the ACLU is taking them “at their word.”
The challenge was filed in state court because the U.S. Supreme Court has determined that federal courts are not in position to hear challenges based on partisan gerrymandering.
TENNESSEE: A panel of judges has ruled that House Bill 48, a bill by the Tennessee Legislature which attempted to shrink the size of the Nashville Metro Council, violates the state’s Home Rule Amendment. The lawsuit argued that unilaterally shrinking the Metro Council from 40 to 20 members waged “an unprecedented disenfranchisement of the voters of Metro Nashville.” The panel of judges agreed, noting issues with protecting local sovereignty.
The Metro Council is the legislative authority for Nashville and Davidson County, making it the third largest local council after New York City and Chicago. In 2023, a state court temporarily blocked portions of House Bill 48 while two lawsuits proceeded. The court noted that the law “results in upheaval of the election process” and would also likely confuse voters. The Metro Council will now remain at 40 members and the law will remain blocked for violating local law.
Important News-TEXAS: The 5th U.S. Circuit Court of Appeals has ruled that a coalition of Black and Latino voters (who formed a majority-minority district in Galveston County, Texas) cannot bring claims of vote dilution under the federal Voting Rights Act (VRA) in their lawsuit against Galveston County’s commissioners court map. A group of voters sued over the map in 2022, and a federal court struck down the map in 2023.
The 5th Circuit is generally known as the most conservative federal appeals court. Out of six dissenting judges, five judges wrote that the majority’s decision in this case “finally dismantled the effectiveness of the Voting Rights Act in this circuit, leaving four decades of en banc precedent flattened in its wake.”
This ruling strikes down part of the lower court’s finding, which ruled that the 2021 map adopted by the commissioners court violated Section 2 of the VRA and denied Black and Latino voters an “equal opportunity to participate in the political process and to elect a candidate of their choice.” The 5th Circuit then sent the case back to the district court to reconsider the claims of intentional discrimination and racial gerrymandering.
In 2023, a 3-judge panel affirmed the lower court’s ruling after Galveston County officials appealed to the 5th Circuit. However, the panel also requested a hearing from the 5th Circuit to reconsider precedent that allows for “minority-coalition” claims of vote dilution under the VRA. As stated in the order, “But the members of this panel agree that this court’s precedent permitting aggregation should be overturned. We therefore call for this case to be reheard en banc.”
Oral argument took place in May and divided the panel on whether (1) minority-coalitions can bring claims under the VRA, and (2) whether VRA protections only cover a single protected class. When defending the map, Galveston County officials have argued that the plaintiffs cannot prove that the redistricting process was “performed because of race.”
The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund, the Alfred P. Sloan Foundation, and the New York City Council. This report was prepared by Jeff Wice & Alexis Marking.
REDISTRICTING INSTITUTE RESOURCES
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