By Jeff Wice & Alexis Marking
N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE
This week- NYS Voting Rights Act On Appeal; Census Questions, Party Registrations see GOP Uptick
N.Y. VOTING RIGHTS ACT LIGITATION
Orange County: Clarke et al. v. Newburgh
On November 26th, the Campaign Legal Center, the American Civil Liberties Union of Southern California, and the American Civil Liberties Union of Northern California filed a brief as amici curiae in support of the Clarke plaintiffs-appellants in the Appellate Division. The brief argued that (1) the federal and state Voting Rights Acts prohibit vote dilution; (2) federal and state courts have affirmed the constitutionality of the California and Washington Voting Rights Acts, and the N.Y. Voting Rights Act (NYVRA) is similarly constitutional; and that (3) the trial court’s order was overbroad.
On November 26th, counsel for Clarke filed briefs with the Appellate Division that included ed four main arguments. First, the appellants argue that the Town of Newburgh and Newburgh Town Board lack capacity to challenge the NYVRA because the dilemma exception applies only if the defendants are likely to be forced to violate a clear constitutional proscription, and defendants are “virtually certain” not to be forced to do so.
Second, they argue that the NYVRA is facially constitutional because (1) the NYVRA employs no racial classifications; (2) is narrowly tailored to preventing and remedying racial discrimination in voting; (3) the NYVRA’s partial divergence from the Gingles framework is constitutionally irrelevant; and (4) cannot be facially nullified because it “undeniably has” lawful applications. Lastly, the brief argues that the Orange County Supreme Court had no authority to consider, let alone invalidate, NYVRA provisions not relating to vote dilution.
Also on November 26th, a brief was filed by Intervenor Attorney General Letitia James. The brief argued that (1) the Town lacks capacity to challenge the NYVRA on its face; (2) The NYVRA’s vote-dilution provision comports with the Equal Protection Clauses of the federal and state constitutions; and (3) the Orange County Supreme Court’s order improperly struck down provisions of the NYVRA that were not at issue.
On November 27th, the NAACP Legal Defense and Educational Fund, Inc. filed a brief as amicus curiae in support of Clarke et al., the appellants. The brief made three main arguments. First, the NYVRA is not a racial classification and is not subject to strict scrutiny. Second, the legal test under Section 2 of the federal VRA does not represent the only constitutionally permissible way to address vote dilution. Third, the brief argues that the lower court’s opinion violates basic principles of constitutional avoidance and severability.
On November 27th, the Court released an order for motions by (1) Campaign Legal Center, American Civil Liberties Union of Southern California, and American Civil Liberties Union of Northern California for leave to file an amici curiae brief, and (2) NAACP Legal Defense & Education Fund, Inc. for leave to file an amicus curiae brief. Upon the papers filed in support of the motion, the Court ordered that the motions are granted and the briefs are accepted for filing. The Court also ordered that no oral argument by the amici curiae shall be permitted and that the parties may reply to these briefs on or before December 5, 2024.
CENSUS
The 2030 Decennial Census Will Collect More Detailed Information on Race and Ethnicity
The U.S. Census Bureau, along with thirteen states and others with pending legislation, have started to collect more detailed information about individuals’ race and ethnicity. Data disaggregation into these more specific identifications can help to illuminate disparities in issues such as health outcomes that could be hidden within much larger racial and ethnic categories.
Racial data from the U.S. Census is paramount because local, state, tribal, and federal agencies and governments use this data for research into numerous policies, such as those involving civil rights. This data is also used in planning and funding for government programs, which provide funds and/or services to specific groups for various needs.
The form will include checkboxes for main categories (e.g., “Asian,” “Black,” “African American,” “White,” etc.) and then will include more specific checkboxes. For example, under “Asian,” there may be checkboxes that include Asian Indian, Chinese, Filipino, Japanese, Korean, or Vietnamese. After these checkboxes, there will be an empty box for individuals to write down more specific subgroups that they identify with.
The Bureau will also now include a separate Middle Eastern/North African (MENA) category. Previously, Middle Eastern people who did not select a race on the form were placed under a subcategory of “white.” Additionally, the Bureau will give individuals the ability to not select any race at all if they identify as Middle Eastern/North African or Hispanic. Based on a proposed code list from the Bureau, it may also recognize the term “Afro-Latino” to indicate both Black race and Hispanic ethnicity, as well as “Blaxican” and “Blasian.”
More open-ended questions will be used on the 2027 American Community Survey and on the 2030 Census. The Bureau is currently seeking public comment on how write-in responses will be categorized. Merarys Ríos-Vargas, Chief of the Ethnicity and Ancestry Branch in the Population Division, stated that the Bureau wants to hear from individuals about how they are likely to identify themselves. The Bureau also wants to know if there are missing or incorrect entries in its proposed list of potential responses.
Thirteen states, as well as several states with pending legislation, already require disaggregation of race or ethnicity data beyond the federal requirements.
ELECTIONS
New York Sees Uptick in GOP & Independent Registrations
The New York Post reports that New York Democrats saw party registration numbers drop by 258,612 voters in New York City from 2020 t0 2024. Democrats saw a 271,322 voter drop statewide while the Republicans picked up 67,483 voters- representing a 2% increase. New York City saw an increase of 4,912 new Republican-enrolled voters. Unaffiliated voters increased by 12% with 353,792 new voters enrolling in neither major statewide party.
Carl Campanile’s article also quotes CUNY Professor John Mollenkopf saying that “across election districts, the share of people registering recently with no party is highly correlated with the share of those voting for Trump in 2024.”
UPCOMING EVENTS
January 28, 2025- Hold The Date- ACS On The Road: New York Law School and several other organizations including Engage NY, the New York Community Trust, CUNY Graduate Center, N.Y. Civic Engagement Table, New York Immigration Coalition, and others will host a half day conference on how to work with American Community Survey census data. Presentations will be made by the New York City Planning Department and U.S. Census Bureau.
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.