By Jeff Wice with Ahmed Hussein, Jordan Karpoff & Alexis Marking
REDISTRICTING & VOTING RIGHTS ACT LITIGATION
Orange County:Clarke et al. v. Town of Newburgh
In January, three Black and three Hispanic residents of Newburgh filed this lawsuit, claiming the town’s at-large election system for Town Board elections has prevented Black and Hispanic residents from electing candidates of their choice, thus violating the N.Y. Voting Rights Act.
On September 9, the court signed a stipulation and order for the production and exchange of confidential information.
On September 10, counsel for the plaintiffs served the defendants with the Note of Issue and Certificate of Readiness (for trial). The plaintiffs request declaratory relief and claim special preference under Election Law § 216, which makes the lawsuit subject to expedited pretrial and trial proceedings and automatic calendar preference as a result.
On September 13, a letter was filed with the court. Counsel for the plaintiffs (Abrams Fensterman, LLP and the Harvard Law School Election Law Clinic) requested that the recently scheduled trial date of November 1, 2024, be moved to November 12, 2024. Counsel for the plaintiffs cited obligations arising from November 5 (Election Day). Counsel stated that they expect to “still be able to complete the trial by November 22.” The defendants took no position on this request.
On September 13, a letter was filed with the court but Judge Vazquez-Doles denied this request from the plaintiffs’ counsel. The trial will continue as previously scheduled on November 1, 2024.
Westchester: Serratto et al. v. Town of Mount Pleasant
This lawsuit was filed in January by voters in the Mount Pleasant Hispanic community. 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 September 12, the Town filed a memorandum of law in opposition to the plaintiffs’ motion for summary judgment. This memo was accompanied by a response and counterstatement to the plaintiffs’ statement of material facts, an affirmation in support of the defendants’ memorandum, and exhibits 1-3.
The Town’s memorandum first alleges that the N.Y. Voting Rights Act (NYVRA) is unconstitutional because it lacks “judicially manageable” standards and violates the federal and state Equal Protection Clauses.
The memorandum then focuses on three main arguments as to why the plaintiffs cannot demonstrate a right to summary judgment under the NYVRA: (1) The plaintiffs have not shown polarized voting in the town as a matter of law; (2) The plaintiffs cannot prove an “alternative benchmark election process” would likely allow Hispanic voters to elect the candidate of their choice better than the current at-large system; and (3) The plaintiffs fail to produce sufficient evidence that Hispanic voters in Mount Pleasant lack the ability to elect candidates of their choice under the totality of the circumstances.
For the third argument, the defendants include eleven sub-arguments which allege the types of evidence that the plaintiffs lack. The memo argues there is no evidence of: (1) discrimination against Hispanic residents; (2) Hispanic-candidate losses in town elections; (3) any procedures that enhance alleged dilution; (4) lack of access to the ballot for town board; (5) disparities in campaign contributions; (6) Hispanics voting at lower rates than whites in all elections; (7) alleged socio-economic disparities being caused by any town policy or impacting Hispanic electoral opportunity; (8) Hispanic residents being disadvantaged in other ways; (9) racial appeals in political campaigns; or (10) lack of responsiveness by the town. The eleventh and final sub-argument states that Mount Pleasant’s “legitimate reasons for an at-large system,” which has “existed for as long as anyone can remember.”
On September 12, the plaintiffs also filed a memorandum of law in opposition to the defendants’ motion for summary judgment. This memo sets forth seven arguments in response: (1) The plaintiffs argue that the NYVRA is a straightforward VRA that sets forth “familiar elements” to prove liability for vote dilution claims, including a “comprehensible” framework with “two well-defined claims” and “two recognizable elements.”
The plaintiffs also argue that: (2) The NYVRA does not violate the state or federal Equal Protection Clauses; (3) The defendants are barred from challenging the constitutionality of the NYVRA; (4) The case is not moot because the defendants’ argument regarding a change to even-year elections is wrong; (5) The plaintiffs have standing to allege vote dilution; (6) There is “extensive evidence” of racially polarized voting, such as reports from experts that were hired by the Town; and (7) There is “ample evidence” that the electoral influence of Hispanic voters is impaired under the totality of the circumstances.
On September 12, a letter/correspondence to the judge was filed. The ACLU of Southern California, ACLU of Northern California, and Campaign Legal Center submitted an Amici Curiae brief in opposition to the defendants’ motion for summary judgment, arguing that the NYVRA incorporates key provisions from other state VRAs and that the NYVRA does not violate the U.S. Constitution for numerous reasons.
On September 12, as part of the same motion, the plaintiffs filed a response to the defendants’ “statement of allegedly undisputed material facts” and an affirmation in opposition to the defendants’ motion for summary judgment.
ELECTIONS
Federal Court Rejects RFK, Jr. Presidential Appeal
The Southern District Federal District Court rejected a motion to stop or enjoin the New York State Board of Elections to keep Robert F. Kennedy, Jr. on the New York presidential ballot because Kennedy’s supports could not demonstrate any likely constitutional injury. The case is Team Kennedy v. Berger et al.
On May 21, 2024, Kennedy supporters filed this action challenging New York Election Law provisions governing the time and manner for collecting signatures to secure the nomination and access to the November ballot under the First and Fourteenth Amendments. On May 31 and June 10, Voter-Objectors filed petitions in two separate state actions to invalidate Kennedy’s nominating petition based on deficiencies in the Kennedy’s residency and signature requirements, mainly because Kennedy listed his place of residence in Katonah, New York when he only owned real property in California and Massachusetts. After a state court granted the petition that was later upheld on appeal, the Kennedy supporters then filed an emergency request for a preliminary injunction on August 22, asking the federal Southern District to prohibit the State Board of Elections from enforcing the state court’s decision and to order the election board to keep Kennedy on the ballot.
In an opinion by Judge Andrew L. Carter, Jr., the Southern District ultimately denied the Kennedy supporters request because they could. Not demonstrate a likelihood of success on a constitutional injury. The court applies the “Anderson-Burdick” framework test when evaluating a constitutional challenge to state election laws. Under this standard, the court looks to the severity of restrictions on the First and Fourteenth Amendment rights and then weighs the burdens imposed on the plaintiff against the State’s interests.
Here, the court held that strict scrutiny did not apply because the burden against constitutional rights is minimal and nondiscriminatory, meaning that the court is giving more deference to the state’s interests as sufficient to justify the restrictions imposed by the ballot requirements. The court also held that the residence requirement is not a severe burden that falls unequally on independent candidates, as “listing [the] correct information about a candidate’s actual residence is far from a severe burden that would be constitutionally impermissible.” Additionally, the residence requirement applies to all candidates, not just independent candidates, showing that it is nondiscriminatory. The state also has a vested interest in preventing voter confusion and misinformation, which is a valid state interest to justify the residency requirement. While many voters wanted to see Kennedy’s name on the ballot, their interest does not outweigh the state’s interest in maintaining the integrity of the democratic system and preventing voter misinformation. Because the Kennedy supporters failed to demonstrate a likelihood of success on the merits of their constitutional claims, the emergency request for preliminary injunction was denied.
CENSUS
New York State May Include Middle Eastern and North African Category in State Databases
While the Biden Administration has approved a proposal for a new census response option for “Middle Eastern or North African” identity and a “new Hispanic or Latino” option that appears under a reformatted question asking: “What is your race and/or ethnicity? New York State is going a step further. New York legislators have passed legislation (S.6584C/A9219B) recognizing the Middle Eastern and North African community by having the state disaggregate the Middle Eastern or North African populations from the White populations when collecting demographic data regarding the ancestry or ethnic origin of New York residents
The MENA category include a variety of Arabic speaking, ethnic, and transnational groups including Egyptians, Jordanians, Iranians, and Kurdish. Currently, individuals who are of Middle Eastern or North African descent identify in the census as “white”, despite many not identifying themselves that way. Many members of the community claim there is a lack of representation due to this misidentification. For example, one member of the community mentioned how all of his census forms and children’s university applications had no category that reflected his cultural identity. Due to the lack of data on Middle Eastern and North African Communities, they have exhibited higher rates of language needs, housing security, poverty, domestic abuse, and health disparities. MENA individuals cannot access support such as language assistance and small business loans due to being categorized as “white.”
Groups that provide services or aid to MENA communities cannot adequately assist the community due to the lack of data. For example, the Census Bureau estimates 280,000 New Yorkers are of MENA descent, but other studies show it is close to 500,000. If the. bill becomes law, many of these issues in the community can be remedied. Middle Eastern and North African groups that have been the victims of oppression and have not been viewed nor reaped the benefits for being “white” can qualify for many minority programs that would benefit them. MENA individuals can also advocate to be a protected class and there will be more accurate information in how policies and civil rights laws impact members of the community. A MENA category can also help address health disparities in the community.
During the COVID-19 pandemic, Arab Americans were disproportionately impacted, due to risk factors such as heart disease and diabetes. Knowing this crucial data in advance would allow a sufficient allocation of health resources if they had their own category.
The inclusion of a Middle Eastern and North African (MENA) category in the census is important for the accurate representation of a diverse community that has long been misidentified and underserved. By officially recognizing MENA residents as a distinct group, policymakers and organizations can address the specific needs of these communities, from health disparities to economic support. As New York leads the way in this initiative, it can set a precedent for how states can act when federal action is uncertain. Ultimately, proper data collection will empower MENA communities, giving them the tools and representation needed to access minority programs, advocate for civil rights, and ensure their voices are heard on both local and national levels. Governor Kathy Hochul has until December 31 approve the legislation.
AROUND THE NATION
Robert F. Kennedy, Jr. Removed from North Carolina Ballot
The North Carolina Supreme Court has ruled that Robert F. Kennedy, Jr. can have his name removed from election ballots in North Carolina and has also denied an appeal from the North Carolina Board of Elections that would have kept Kennedy on the ballot.
As stated by the Court in its 4-3 ruling, “it could disenfranchise countless voters who mistakenly believe that plaintiff remains a candidate for office” if Kennedy stayed on the ballot. However, the Court recognized that printing new ballots will “require considerable time and effort by our election officials and significant expense to the State.”
The Washington Post reported that local election officials in North Carolina are estimating that the preparation of new ballots (without Kennedy’s name) will delay the process of mailing out ballots by at least two weeks and cost county offices more than $1 million total.
Last month, Kennedy suspended his presidential campaign and endorsed Donald Trump. He then requested for his name to be withdrawn from the ballots in ten battleground states. Kennedy had stated that he did not want votes for him to swing the election in battleground states toward Vice President Kamala Harris.
The North Carolina Board of Elections appealed the State Court of Appeals’ decision to the Supreme Court after the court ordered the BOE to reprint mail ballots without Kennedy’s name. The BOE argued that Kennedy had not attempted to remove his name from the ballots in all states, which “mitigated his right to do so” in North Carolina.
Twenty-seven counties had already begun printing ballots and virtually all others had finalized proofs when Kennedy suspended his campaign. Three days later, when Kennedy’s campaign contacted the North Carolina Board of Elections, more than fifty percent of all counties had begun printing ballots.
In a similar case in Michigan, the Michigan Supreme Court ruled against Kennedy’s request to remove his name from the ballots. In Michigan, Harris leads Trump by one point. In North Carolina, Trump leads Harris by less than one point.
REDISTRICTING
ARKANSAS: A federal court has dismissed a 2022 lawsuit that challenged Arkansas’ congressional maps. After the 2020 Census, the maps were redrawn by a state panel to split Pulaski County, the most populous county in the state, between three congressional districts (out of four total). The plaintiffs—six Black Arkansas residents, including a state senator and state representative—argued that the new congressional maps diluted Black power in Pulaski County.
In June, the U.S. Supreme Court reversed a federal three-judge panel’s prior dismissal of this case and returned it to the panel again, but with new instructions. The panel instructed the judges to apply a test from Alexander v. South Carolina State Conference of the NAACP to determine whether apparent racial gerrymandering violated the U.S. Constitution. This new test imposed a higher bar for the plaintiffs than the prior one, which the plaintiffs had already failed to clear.
Under the new test, according to Justice Samuel Alito, it is now insufficient to show “a plausible inference that race was the ‘predominant factor’ behind the adoption of” a new congressional map. Instead, a plaintiff bringing a claim now “must show that the State’s redistricting plan ‘has the purpose and effect’ of diluting the minority vote.”
The plaintiffs in this case failed to meet this higher bar, and a federal court has now dismissed this 2022 legal challenge for a second time.
FLORIDA: The Florida Supreme Court heard arguments about the constitutionality of a congressional redistricting plan that Governor Ron DeSantis pushed through the Legislature in 2022. DeSantis had vetoed the congressional map passed by the Legislature, which included two alternatives for the disputed district (District 5).
The Black voters, once in one district, are now spread throughout four majority-white districts. White Republicans won all North Florida congressional districts in 2022 after the redistricting plan went into effect.
The plaintiffs alleged that the plan violated a 2010 Florida constitutional amendment that prohibited drawing districts that would diminish the ability of minorities to elect representatives of their choice. They argue the plan also violated a Florida Supreme Court precedent about how to apply the “non-diminishment” provision in the constitutional amendment.
In March, a federal 3-judge panel concluded the plaintiffs had not proven that the Legislature “acted with race as a motivating factor.” The plaintiffs had alleged in federal court that the 2022 map violated the 14th and 15th Amendments because of intentional race discrimination. The plaintiffs then brought this case in the Florida Supreme Court for violating a Florida constitutional amendment.
The disputed plan will be used in the November 2024 elections. The Supreme Court generally takes months to rule in cases after hearing arguments.
UTAH: A Utah judge has ordered the state to void a proposed amendment that was set to appear on the November ballot. The amendment would have allowed the Legislature to repeal or alter voter-approved ballot initiatives.
This ruling is a result of a lawsuit filed by voters and voting rights groups, which argued that the ballot measure’s language was “unconstitutionally misleading” and that the Legislature failed to provide proper notice of the proposed amendment’s publication. The plaintiffs argued that the Legislature used “deceptive” ballot language to describe the proposed amendment as one that would “clarify” and “strengthen” citizens’ rights to enact initiatives, which is not true.
As stated by the judge in Thursday’s ruling, the Legislature “has the duty and the obligation to accurately communicate the ‘subject matter’ of the proposed amendment to voters and to publish the text of the amendment in a newspaper in each county two months before the election. It has failed to do both.”
The amendment will remain on the ballot to ensure Utah can meet its election deadlines, but it will now be considered “void” and will be “given no effect.”
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 with Ahmed Hussein, Jordan Karpoff & Alexis Marking.