By Jeff Wice, Jarret Berg & Alexis Marking
This week: NYS Voting Rights Act Upheld by Appellate Division, Legislature May Change Election Calendar, State Budget Hearings Focus on Elections, Access to Voting Proposal, Census Bureau Director Resigns, Lutnick Promises a Complete 2030 Count; ACS Conference Recording Link Available, Around the Nation: Illinois, North Carolina, Utah
N.Y. VOTING RIGHTS ACT LIGITATION
New York Appellate Division Reverses Lower Court Decision, Upholds New York Voting Rights Act in Clarke v. Newburgh
A four-judge panel in the New York Appellate Division, Second Department has unanimously ruled that the Town of Newburgh failed to show how remedying vote dilution in accordance with the New York Voting Rights Act (NYVRA) would violate the Equal Protection Clause of the 14th Amendment.
In March 2024, six Black and Hispanic voters filed a lawsuit against the Town of Newburgh and the Town Board of Newburgh, alleging that the Town’s at-large method for electing town board members diluted the voting power of minorities and thus violated the NYVRA. The Town failed to remedy the at-large electoral system after being notified of its NYVRA violation, prompting the filing of this lawsuit.
The Town moved for summary judgment to dismiss the complaint and argued that the NYVRA’s vote dilution provisions violate the Equal Protection Clauses of the New York Constitution and the 14th Amendment of the U.S. Constitution. The Orange County Supreme Court granted the defendants’ motion and ruled that the NYVRA was facially unconstitutional in violation of the Equal Protection Clause of the 14th Amendment. The court also ruled that the NYVRA was “stricken in its entirety from further enforcement and application to these defendants and to any other political subdivision in the State of New York.”
The plaintiffs appealed this decision to the Appellate Division. New York State Attorney General (NYSAG) Letitia James intervened as an appellant. In a filing, NYSAG wrote that the trial court decision “rests on the fundamentally incorrect premise that the NYVRA’s anti-discrimination provisions are themselves discriminatory.” She argues that instead, the law “equally protects voters of any race from discriminatory vote dilution,” in compliance with both the U.S. and New York Constitutions.
Here, the panel agreed. The court noted that the NYVRA provides “multiple alternative electoral methods to at-large systems that do not sort voters based on race.” Moreover, “Even a district-based system would be constitutional so long as race was not used as a predominant factor in drawing the map outside of very limited circumstances.”
The court further concluded that the NYVRA does not need to contain the first Gingles precondition, which was heavily argued in multiple cases throughout the state: “Gingles was not contemplating influence districts or remedies such as ranked-choice voting, cumulative voting, limited voting, or the elimination of staggered terms. . . . Since the NYVRA specifically allows for remedies that might allow for minorities to elect their candidates of choice or influence the outcome of elections without their constituting a majority in a single-member district, it was rational for the New York Legislature to not include the first Gingles precondition as a precondition to liability under the NYVRA.” (note- the Gingles precondition in question here is whether a district is comprised of at least 50% minority voting age population).
Furthermore, the NYVRA does not significantly differ from the federal VRA. While the text of the NYVRA is unlike the FVRA because it does not require the plaintiff in every vote dilution case to show that “under the ‘totality of the circumstances’ … the political process is not ‘equal open’ to minority voters,” in order to obtain a remedy under the NYVRA, a plaintiff still must show that “vote dilution” has occurred. Moreover, the plaintiff must show that there is an alternative practice that would allow the minority group to “have equitable access to fully participate in the electoral process.”
Finally, even if it was unconstitutional to apply the NYVRA in situations where the Gingles test has not been satisfied, the NYVRA could still be constitutionally applied in situations where Gingles has been satisfied. All parties agree that the FVRA as interpreted by Gingles is constitutional. Here, the plaintiffs contend that the evidence they submitted in opposition to the Town’s motion demonstrates that each element of the Gingles test has been satisfied.
Along with this opinion, the Court also affirmed the lower court’s May 2024 decision to not dismiss this case. The town had argued that because they adopted a resolution stating their intention to remedy a potential NYVRA violation, the Town was immune to litigation for 90 days under the NYVRA’s “safe harbor” provision. The trial court wrote that the town cannot use the safe harbor provision as a “stalling tactic” to put off litigation when “it has conclusively decided to take no further action.” The Appellate Division agreed.
This case will now return to trial court, where the parties will argue whether the at-large electoral system violates the NYVRA. This decision also impacts similar lawsuits challenging at-large electoral methods in the Towns of Cheektowaga and Mount Pleasant.
ELECTION LAW
Razor-Thin Margins in Congress May Drive State Election Policy on Timeframe for Filling Vacancies
State lawmakers are reportedly working on legislation that could impact the election calendar, extending the timeframe for the Governor to schedule special elections, which are held when a lawmaker vacates their seat early. State law currently requires the governor to act within 10 days after a vacancy. For a congressional seat, the special election must then occur between 70 to 80 days after the proclamation. The proposal–which is not yet public but which could move through Albany as soon as this week–could lengthen those timeframes and may allow the Governor to combine a special election with the annual state and local primary election, which occurs on the fourth Tuesday in June.
The change may lead to GOP Congressional Rep. Elise Stefanik’s safe upstate district remaining vacant and unrepresented until the Summer if the lawmaker is confirmed in the coming weeks as the 32nd U.S. Ambassador to the United Nations. This could hinder the ability of House Republicans to advance legislation (the GOP controls the House by a super-slim margin of 218 to 215, and two other GOP representatives have already resigned to serve in the new administration). In a statement, Governor Hochul discussed her commitment “to expand voting rights”, noting that she would support legislation “to increase voter turnout and reduce the cost of election administration . . . .” Merging typically low-turnout special elections in non-competitive districts with the odd-year local June primary would conserve scarce local resources during the ten days of in-person voting across 11 mostly rural, less-populous counties that make up the 21st district and may boost turnout. Stefanik carried the district by 24 points in 2024 (64%-38%).
Election Officials and Advocates Heading to Albany for State Budget Hearings
On Tuesday, New York State lawmakers will hold a Joint Legislative Budget Hearing on Local Government, which will include presentations from election officials and testimony from advocates in support of dedicated annual appropriations for election administration and increased aid to localities funding.
There is bipartisan agreement from New York’s Elections Commissioners Association (NYSECA) that the state should move to an annual funding model which includes a more reliable and predictable funding component for counties, which administer federal, state, and local elections. The Governor’s initial 2025-26 budget proposal did not include dedicated funding for local boards of elections, although $5 million was specified for Vote By Mail, which includes voting rights safeguards like postage-paid return envelopes and an opportunity to cure minor defects that can void legitimate ballots. NYSECA is calling for “Aid to localities funding of $10 million for distribution to County Board of Elections for unbudgeted expenses.” Technology upgrades in several counties, like new electronic pollbook (iPad) tablets, may also need to occur before the next federal election in 2026.
Civil Rights Advocates and Immigrant Rights Groups Join Forces to Call for Improvements to Voter Registration and Modern Access to Voting for Detained Citizens
On Thursday, a new coalition “New Yorkers for an Inclusive Democracy” will gather for a press event in Brooklyn hosted by the State NAACP and the New York Immigration Coalition (NYIC), to highlight the push for several long-overdue voter access priorities, including Automatic Voter Registration (AVR) for New Yorkers when they transact with various government agencies; the Democracy During Detention Act (DDDA) which will ensure a timely voter registration program and effective access to balloting for detained citizens who have not lost their right to vote; and, funds for agency voter outreach to low-income citizens.
Implementation of New York’s AVR program has been delayed for years since it was first enacted in 2020, when New York became the nineteenth state to adopt an AVR policy. The technical details of how AVR programs work vary by state, and policy differences have emerged. With respect to voter access for eligible citizens in jails, a 2023 survey by New York’s League of Women Voters found that only 11 of the 57 counties outside of New York City had “meaningful and effective programs” to facilitate voting by detained citizens and that “few counties make a serious attempt” to provide such access. The DDDA framework establishes minimum standards and modern safeguards for voting access, while preserving local flexibility to tailor a program that meets local needs.
CENSUS
Census Bureau Director Rob Santos Resigns; Commerce Nominee Promises a Complete Count
U.S. Census Bureau Director Rob Santos has resigned his position ahead of the end of his five year appointment. Santos wants to let President Trump select his own Bureau director.
According to the Associated Press, “(q)ueries about sexual orientation and gender identity were planned for the 2027 annual survey of American life for the first time. The bureau also was implementing a directive from the Biden administration to combine questions about race and ethnicity and add a new Middle Eastern and North African category.”
According to news reports, Howard Lutnick, Trump’s nominee to become the Secretary of Commerce, the department that oversees the Census Bureau, committed to “count each whole person (in the 2030 census). … That’s what the Constitution says, and we will stick right to it rigorously.” That does not mean that the Census would not ask a citizenship question, however. If the Census Bureau provides states with block-level census data with information on citizenship, states and localities could use that data to redraw legislative districts based on citizens, an issue likely to be litigated over in the coming years.
“American Community Survey (ACS) On The Road” Conference at New York Law School
On Tuesday, January 28, over 150 people participated in the “ACS On The Road” conference at New York Law School sponsored by the law school, U.S. Census Bureau, Population Reference Bureau, and New York City Planning Department. Participants learned about ACS data, how to use it, and how it’s used in New York City. The conference panels can be viewed here: https://nyls.zoom.us/rec/share/ZxVnKcaxZqoxfTY_gtAF94hhihr4UqDNVU0XXfjBwLU_cZ2EPTwNjFUIIaxzq6nT.3DywRMz5tojYHkTp?startTime=1738070913000
AROUND THE NATION
ILLINOIS: Illinois House Republicans leaders have filed a lawsuit in the Illinois Supreme Court, alleging that the current House district map disenfranchises voters and unconstitutionally favors Democrats. Democratic lawmakers approved the House, Senate, and congressional maps during the redistricting process in 2021.
House GOP leaders argue that 58 of the current 118 House districts are “not compact” and therefore violate the Illinois Constitution’s Free and Equal Election Clause, which requires that legislative districts be “compact, contiguous and substantially equal in population.” Republicans have asked the Illinois Supreme Court to strike down the map and appoint a Special Master to “draft a valid and constitutionally acceptable redistricting plan.”
Republican lawmakers also referenced previous racial gerrymandering claims brought against this map. In October 2021, the NAACP and other organizations filed a lawsuit which alleged that three of the state House districts were racial gerrymanders in violation of Section 2 of the Voting Rights Act (VRA) and the 14th and 15th Amendments of the U.S. Constitution. The plaintiffs alleged that the districts were drawn to protect white Democratic incumbents and to dilute Black voting power. Ultimately, a federal three-judge panel upheld the map in December 2021 and declined to order the creation of new maps that would have included more majority-Black and majority-Latino districts.
NORTH CAROLINA: The Fair Maps Act (HB 20) has been introduced in the North Carolina House to create an Independent Redistricting Commission. The bill would amend the state’s constitution to establish an independent redistricting commission composed of regular North Carolina residents instead of politicians. The commission would consist of an equal number of Democrats, Republicans, and unaffiliated voters. For more information on the bill, click here.
UTAH: Final arguments were heard in front of a district court judge in a lawsuit over Utah’s allegedly gerrymandered political maps. A motion hearing on the plaintiffs’ motion for summary judgment was scheduled for last Friday.
This lawsuit was filed by the League of Women Voters of Utah, Mormon Women for Ethical Government, and individual voters to challenge Utah’s new congressional map. The complaint alleges that the new redistricting map is a partisan gerrymander that favors Republicans by “cracking” non-Republican voters across districts, which violates the Utah Constitution. The lawsuit also alleges that the Utah Legislature’s repeal of Proposition 4, a 2018 ballot initiative that established an independent redistricting commission composed of citizens, “violated the people’s constitutionally guaranteed lawmaking power and right to alter and reform their government.” The plaintiffs asked the court to block the use of the new congressional map, as well as reinstate Proposition 4 for “all future map-drawing processes.”
In Friday’s hearing, counsel for the plaintiffs asked the court for three things: (1) to block portions of law that the Utah Legislature enacted in 2020, which established a redistricting process separate from the one in the ballot initiative; (2) to block the current congressional maps; and (3) to ensure that future maps all meet the criteria of the initiative that was put into place.
Representatives for the Legislature asked the court to first decide whether or not lawmakers illegally ignored the will of voters when it passed the law for a separate redistricting process and then later in adopting congressional maps. It is unclear when the court’s ruling will come, but Lt. Gov. Deidre Henderson has requested that electoral maps for the 2026 congressional elections be finalized by November 1, 2025.
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 and the New York City Council. This report was prepared by Jeff Wice, Jarret Berg & Alexis Marking.