by Jeff Wice & Alexis Marking
REDISTRICTING
Orange County Legislature Inches Forward With New Map
In what may be the final county legislative redistricting process in the state, the Orange County Legislature has approved one map to move forward to a public comment period before a public hearing is scheduled on Tuesday, August 27th at 5:00 PM. After disagreeing for weeks on how to proceed, the legislature’s Rules Committee broke a logjam last week after debating whether to send several maps to public comment or just one map. The county has seen dramatic population growth in several communities, requiring major shifts in district boundaries under the new state criteria.
ELECTION LAW
Lawsuit Challenges Equal Rights Amendment Over “Abortion”
Arguments have begun in a new lawsuit against the wording of the state ERA amendment on the November ballot. A new law enacted last year requires ballot language for voter referendum questions in New York State to be written in plain language at “no higher than an eighth-grade reading level.” The ERA’s ballot language, which was recently approved by the New York State’s Board of Elections (BOE), has been scored at a college reading level. As a result, two New York voters filed a lawsuit against the state BOE.
The Equal Rights Amendment (ERA would amend the state constitution to additionally ban discrimination based on age, disability, ethnicity, gender expression, gender identity, national origin, pregnancy, pregnancy outcomes, reproductive health care and autonomy, sex, and sexual orientation. The ERA would not preserve one’s right to have an abortion but would prevent discrimination against individuals for having an abortion.
The voters argue that this college-level score is clear evidence the ballot language violates the new law. Additionally, the plaintiffs argue that the current language does not include terms such as “LGBT” or “abortion,” even though the ERA intends to enshrine abortion protections and rights for the LGBT+ community into the state constitution.
The state BOE chose in late July to use the ballot measure’s technical language verbatim rather than to interpret the ERA’s language into a simpler explanation for the ballot. Democrats have argued that including terms such as “abortion” and “LGBT” would make the ERA’s intent clearer to voters and have urged the BOE to do so. The BOE’s Democrats have now filed court documents that agree the ERA’s ballot language should include the term “abortion.” The voters hope to change the ballot language before the November election.
As of now, it is unclear when the court will decide in this lawsuit. The New York Board of Elections must certify what will be on the ballot by September 11, and all county boards of elections must certify this information by September 12.
Robert F. Kennedy Jr. Will Not Appear on New York State Presidential Ballot
Independent presidential candidate Robert F. Kennedy Jr. will no longer appear on New York’s presidential ballot in November, a lower court in Albany ruled last Monday. This decision stems from a lawsuit filed on behalf of New Yorkers, which sought to invalidate RFK Jr.’s nominating petition on the grounds that the presidential candidate falsely claimed to live in New York State.
A non-jury trial took place over four days earlier this month. Justice Christina Ryba, a trial court judge, issued a nearly immediate decision under New York election law in favor of the plaintiffs.
RFK Jr. testified that his move to California ten years ago was “only temporary” and that he intended to move back to New York. At the time of the trial, the presidential candidate was allegedly renting a room in his friend’s home in Katonah, but he testified that he has only slept in that room once due to “constant campaign travel.”
As stated in the decision by Justice Ryba, “The overwhelming credible evidence introduced at trial established that Kennedy’s connections with the 84 Croton Lake Road address existed only on paper and were maintained for the sole purpose of maintaining his voter registration and political standing in the State of New York.”
This decision, which has now been appealed, will likely lead to additional lawsuits to remove RFK Jr. from other states’ ballots, as he listed the same New York address other state election filings.
If the presidential candidate is ultimately found to be a California resident, he would be ineligible to receive California’s electoral college votes. The 12th Amendment of the U.S. Constitution bars candidates from receiving a state’s electoral college votes if both candidates are from the same state. RJK Jr.’s running mate, Nicole Shanahan, is a resident of California.
VOTING RIGHTS
Appellate Division Hears Absentee Voting Law Appeal
Arguments have now been heard in New York’s Albany-based Appellate Division, Third Department over an absentee voting law. The matter involves one sentence in New York Election Law that was added in 2021 and supported by Democrats. Republicans brought this case as a result, claiming the law could lead to “rampant voter fraud” across New York State. The Court will now decide whether this law is unconstitutional or shall remain in place.
The challenged law amended the Election Law to “change the process for canvassing absentee, military, special and affidavit ballots in order to obtain the results of an election in a more expedited manner and to assure that every valid vote by a qualified voter is counted.”
The sentence at issue states, “If the central board of canvassers splits as to whether a ballot is valid, it shall prepare such ballot to be cast and canvassed pursuant to this subdivision.” This case focuses on what should happen in the event that a board member believes the signatures do not match. The parties agree on its meaning: “If a member of the board thinks the signatures match but another member disagrees, that vote is presumed to be valid and is counted.”
This law was intended to (1) prevent absentee ballots from being incorrectly thrown out and (2) to expedite election results by avoiding board conflicts regarding the validity of ballots. In this case, Republicans argue that this law is in violation of the New York Constitution, and that the law could “open the door” to fraud from individuals who “unlawfully vote by mail on behalf of others or who die before an election.”
As argued by Assistant Solicitor General Sarah Rosenbluth, who represented New York in the hearing at the appellate court, “In the in-person context, it’s the same presumption of validity and that’s been a rule for decades.”
Republicans further argue that a section of the New York Constitution requires equal party representation on boards of elections and when votes are counted. Here, the reasoning is that this section would be violated when one party usurps the other regarding the validity of an absentee ballot.
The Third Department should issue a decision in the next few weeks. Thank you to Dan Clark at the Albany Times Union for its reporting on this case.
N.Y. VOTING RIGHTS ACT
Nassau County Legislature: Coads et al. v. Nassau County & NY Communities for Change v. Nassau County
Two lawsuit challenges to the 2023 redistricting map for the Nassau County Legislature, which went into effect on February 28, have been consolidated.
On August 13, Supreme Court Judge Paul I. Marx signed a proposed order from August 5th. Four notices of entry were filed regarding the court’s decisions and orders. Additionally, four notices of appeal were filed by the parties on August 13.
The appellants, including the Nassau County Legislature, filed two notices that appealed “each and every portion” of the order regarding two joint letters: one from April 10, 2024, and one from May 14, 2024. Appellant non-party Dr. Sean Trende, a redistricting expert and litigation consultant who informed the firm’s legal advice in Coads et al., appealed the order. Appellant non-party Mr. Misha Tseytlin, the county defense attorney, also appealed the order.
On August 14, Plaintiffs in both the Coads et al. and NY Communities for Change (NYCC) actions wrote a letter of correspondence to request that the court issue an executory order compelling Dr. Trende and Mr. Tseytlin to produce the documents requested in the subpoenas at issue in the July 31 and August 7 orders prior to their depositions and “no later than” August 23, 2024.
Another proposed order was filed on August 14 and awaits the court’s decision.
Lastly, on August 16, another letter of correspondence was filed with the court. Pursuant to the August 7 order, the plaintiffs and defendants in NYCC wrote jointly regarding the new requests for admissions (“RFAs”) that the NYCCplaintiffs intend to propound and the parties’ disputes over RFAs already propounded.
Town Of Mount Pleasant (Westchester) Serratto et al. v. Town of Mount Pleasant
This lawsuit was filed in January by Mount Pleasant Hispanic community voters. The suit asserts that the Town’s use of an at-large method of election, where all voters elect the Town Supervisor and all four Town Board members, led to racially polarized voting and prevented Hispanic voters from electing the candidate of their choice.
On August 13, the plaintiffs filed a statement of material facts, a motion for summary judgment, a memorandum of law in support of their motion for summary judgment and exhibits A through Z and AA through ZZ.
On August 13, the defendants similarly filed a statement of material facts, a motion for summary judgment, and a memorandum of law in support of their motion. Additionally, the defendants filed an affirmation of Ariana Dindiyal in support of their motion for summary judgment, as well as exhibits A through R.
AROUND THE NATION
U.S. Fifth Circuit Decision Undermines the Voting Rights Act: On August 1, the 5th U.S. Circuit Court of Appeals overturned long-standing precedents in a 12-6 decision, ruling that the federal Voting Rights Act (VRA) does not permit claims for coalition districts. Coalition districts are claims “in which two or more minority groups join together to bring a collective claim challenging an electoral map.”
Earlier this month, the Court ruled that a coalition of Black and Latino voters (who formed a majority-minority district in Galveston County, TX) cannot bring claims of vote dilution under the VRA in this 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.
That ruling struck 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.”
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; an issue of which the Supreme Court has not ruled.
The en banc decision from the circuit court overturns its 1987 ruling in Campos v. City of Baytown, which allowed coalition district claims in situations where minority groups could show that they were “politically cohesive.”
No information has been provided on whether the plaintiffs will seek review of the decision by the Supreme Court. Campaign Legal Center attorney Valencia Richardson, representing the individual plaintiffs in this lawsuit, stated that they are “considering next steps at this time.”
Ohio Redistricting: The Ohio Ballot Board chose to certify ballot language in a 3-2 vote for a redistricting amendment to the Ohio Constitution, which will be a ballot measure in November. Supporters of the ballot measure claim this language will be deceiving to voters.
With this measure, Ohio voters will decide whether to remove the 7-member Ohio Redistricting Commission, all of which are politicians (currently 5 Republicans and 2 Democrats), in favor of the Ohio Citizens Redistricting Commission.
This commission would have 15 members: 5 matching the governor’s political party at the time, 5 from the party of the “gubernatorial candidate who received the second-most votes in the most recent election,” and 5 unaffiliated members.
Don McTigue, an attorney with the ballot campaign, told the Board that the language is false and misleading. For example, McTigue argued that they could have said the commission will “draw the maps” instead of “manipulate the boundaries,” which is misleading and has a clear negative connotation.
Two attempts were made to certify the language proposed by the ballot campaign instead, but the Board voted down both motions. Citizens Not Politicians, the campaign responsible for the amendment, recommended five bullet points for the ballot language. However, the Board is not required to use the same language as recommended by the ballot campaigners.
If the current draft ballot language is approved by the Board, Citizens Not Politicians would sue. The ballot language may violate the Ohio Constitution, which prohibits any wording that is designed to “mislead, deceive or defraud” voters.
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, the Alfred P. Sloan Foundation, and the New York City Council. This report was prepared by Jeff Wice & Alexis Marking.