State of Elections

William & Mary Law School | Election Law Society

Archives for February 2023

Suits Against Texas’s 2021 Voting Law Move Forward, Promise Lengthy and Complex Legal Battle

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By Kate Dopkin

Fueled by conspiracy theories and former President Donald Trump’s claims that the 2020 election was rigged, last year, conservative states moved to pass legislation to restrict voting. The Republican-dominated Texas Legislature was no exception. In September of 2021, the Texas Legislature passed S.B. 1, a voting law that attempted to restrict how and when Texas voters can cast ballots. The far-reaching legislation banned drive-thru and 24-hour voting, protected partisan poll watchers, and imposed new requirements for assisting voters who need help filling out their ballots. The law also banned the distribution of mail-in ballot applications, created new ID requirements for voting by mail, and provided a correction process for mail-in voting. The ACLU of Texas described the legislation as “Omnibus Voter Suppression.”

Civil and voting rights groups have challenged S.B. 1 under the U.S. Constitution, the Voting Rights Act, and the Americans with Disabilities Act (ADA). The private plaintiffs included La Union del Pueblo Entero, Friendship-West Baptist Church, The Anti-Defamation League, and Texas Impact, among others. At least five different cases have been consolidated into a single lawsuit in the Western District of Texas. The U.S. Department of Justice filed a statement of interest in the case, arguing that the plaintiffs had sufficiently stated a claim of intentional discrimination under Section 2 of the Voting Rights Act.

Additionally, in November 2021, the U.S. Attorney General filed a lawsuit against the State of Texas and the Texas Secretary of State, alleging that SB 1 violates Section 208 of the Voting Rights Act by improperly restricting assistance in the polling booth for voters with disabilities that make it difficult for them to read or write. The lawsuit further alleged that the law violated Section 101 of the Civil Rights Act by requiring rejection of mail ballots and mail ballot request forms because of certain paperwork errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot. In May of 2022, Judge Xavier Rodriguez, denied the State’s motion to dismiss and allowed the Attorney General’s lawsuit to move forward.

Attempts to dismiss the private plaintiffs’ complaints have largely been unsuccessful. The defendants asked the court to dismiss claims raised by various voter advocacy organizations, including those filed by LULAC, Voto Latino, Texas Alliance for Retired Americans, and Texas AFT. On July 12, 2022, the district court allowed the majority of the claims to move forward, holding that the State defendants could not claim sovereign immunity; some of the plaintiffs had associational standing; all plaintiffs had organizational standing; and the plaintiffs had stated a claim upon which relief could be granted. The district court has also granted LULAC’s motion to compel documents and communications from the state legislators concerning claims of criminal conduct in Texas elections, the anticipated effects of S.B. 1, and communications with third-party organizations concerning S.B. 1. Texas legislators have appealed this order to the 5th Circuit.

On August 2, 2022, the District Court allowed most of the LUPE Plaintiffs’ claims to  proceed, dismissing without prejudice certain claims under the 14th and 15th Amendments,  sections 276.016, 276.017, and 276.019  of the State Election Code, and the ADA. State defendants have appealed that decision to the 5th Circuit, as well. The litigation is ongoing, and promises to be a lengthy and complex legal battle. The trial is currently scheduled for the summer of 2023.

If You Want Something Done, Do It Yourself – New York Passes Landmark State Voting Rights Protections

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By Haley Rosenspire

In the wake of Supreme Court cases like Shelby v. Holder striking down key provisions of the 1965 Voting Rights Act, Alabama Representative Terri A. Sewell introduced the John R. Lewis Voting Rights Advancement Act in August 2021. The Act, which has passed the House several times but has never had the votes to pass the Senate, would establish new criteria for determining which states and precincts must obtain Section 5 “preclearance” prior to changes to voting practices taking effect. Preclearance is the process of predetermined states and precincts receiving pre-approval from the Department of Justice before making legal changes that would impact voter’s rights, a mechanism which became necessary during the Civil Rights Movement to ensure that Black citizens were able exercise their voting rights.

Despite, or possibly because of, the Bill’s failure to clear the Senate, the State of New York took matters into its own hands in June of 2022 by passing its own “John R. Lewis Voting Rights Act of New York.” While the laws share a name, they do differ in some substantial ways. While the federal John R. Lewis Voting Rights Advancement Act focuses more on updating key provisions to the 1965 law, the New York Act brings that vision to the state level by launching its own preclearance program, providing new legal tools to fight discriminatory voting practices, creating protections against voter intimidation or obstruction, and providing specific assistance in elections to language-minority groups.

The Act, which bears the name of Civil Rights giant and former congressman John Lewis was signed into law by Governor Hochul at Medgar Evers College in Brooklyn on June 20, 2022.  It makes its legislative and public policy purpose clear in its first section, stating:

In recognition of the protections for the right to vote provided by the constitution of the state of New York […]  it is the public policy of the state of New York to:

1. Encourage participation in the elective franchise by all eligible voters to the maximum extent; and

2. Ensure that eligible voters who are members of racial, color, and language-minority groups shall have an equal opportunity to participate in the political processes of the state of New York, and especially to exercise the elective franchise. N.Y. Elec. Law § 17-200 (McKinney)

The second section of the Act further proscribes that “the authority to prescribe or maintain voting or elections policies and practices cannot be so exercised as to unnecessarily deny or abridge the right to vote.” N.Y. Elec. Law § 17-202.

These lofty legislative and policy goals are animated by a new, robust preclearance law that regulates the following: methods of election, the annexation of political subdivisions, the consolidation or division of political subdivisions, the removal of voters from enrollment lists, the dates of elections or the election calendar, the registration of voters, the assignment of election districts, the assistance offered to members of a language-minority group, as well as any other topics designated by the civil rights bureau.  N.Y. Elec. Law § 17-210. The law also includes explicit prohibition against voter intimidation and obstruction, as well as expedited pretrial and trial proceedings for actions brought pursuant to the Act.

With next term’s Merrill v. Milligan poised to challenge even more of the substantiative law of the Voting Rights Act of 1965 and federal voting rights legislation dead in the water with the current composition of the Senate, New York is not the only state that has moved to shore up voting rights at the state level.  The Brennan Center for Justice reports that in 2022, Arizona, Connecticut, and Oregon have also enacted laws that “expand access to the vote,” and another “48 bills with expansive provisions are moving through 16 state legislatures”. Other states yet move to impose more restrictive voting regulations— though still intended to protect democratic processes— particularly those aimed at combatting voter interference. Despite the type of regulations imposed, the trend continues to point to robust debate and activity for election law at the state level—the Empire State, as per usual, leading the crusade.

A Tale of Two Cities: The Recall Efforts of the San Francisco and Los Angeles District Attorneys

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By Caleb McClain

Earlier in the year, I wrote an article for this blog on the recall election laws of my home state of California. I was inspired to write the article by to the persistent efforts to recall my county’s District Attorney, George Gascón, and the recent special election that tried to recall the Governor, Gavin Newsom. Shortly after I finished writing the article, there was a successful recall of the San Francisco District Attorney Chesa Boudin and a failed attempt to recall Gascón. Considering these events, I wish to take a closer look at both elections and see if any of the critiques of the California recall system apply.

As I have previously given a history and overview of recall election, I’ll give only a brief summary. Recall elections emerged out of the progressive movement as way to give power back to the people to remove corrupt officials but in practice have had a mixed effect. California has hosted over 11 recall elections with the most famous being the successful recall of Grey Davis in 2003 and the failed attempt to recall Newsome in 2021. The election occurs when a recall petition is circulated in the required jurisdiction to gain signatures. If the required number is met, it triggers an election to decide if the official will be recalled and, depending on the office, who will replace them. For county-wide elections the number of required signatures is determined by a percentage of the number of registered voters in that county with bigger counties needing a smaller percentage.

First to be examined is the successful campaign against SFDA Boudin. For a successful county-wide recall in San Francisco county, a petitioner must collect over 50,000 valid signatures from among San Francisco’s 496,000 registered voters. Supporters of the recall managed to gather more than 80,000 valid signatures ensuring it would go to a vote. The vote ultimately resulted in 122, 000 voting for the recall compared to 100,00 voting to keep Boudin, successfully recalling the DA by more than 20,000 votes and making SF Mayor London Breed pick the next DA.

Next, we examine the failed campaign to recall DA Gascón. For a successful county-wide recall in Los Angeles County a petitioner must collect over 570,000 valid signatures from the county’s 5.6 million registered voters. Supporters of the recall fell short by over 50,000 votes when they only managed to get 520,000 valid signatures leaving Gascón safe until he is up for reelection in 2024. This was the second failed attempt to recall Gascón.

In my previous article I pointed out several issues with the way California’s recall elections were set-up particularly at the state level. Now these two recall attempts, despite their different outcomes, offer useful examples of these flaws at the local level. The first and greatest among these is the low bar of signatures needed to trigger a recall election with only 10% needed to trigger a recall election in a county with over 100,000 registered voters. Currently California has over 30 counties with registered voter populations over 100,000 out of 52 total counties. Looking at San Francisco in particular, it is not a great challenge to round up 50,000 voters out of just under 500,000 total. As California Secretary of State Shirley Webber puts it “There’s always 10 to 15% who do not like somebody.”

A second, and broader, critique is the overall effectiveness of recall elections. At the state level, I pointed out how recalling governors was due less to perceived corruption than to external forces they had little control over or internal partisan squabbling. This same issue still holds true at the local level, with the San Francisco and Los Angeles recalls both being marked by similar forces despite their different outcomes. Both cities were on the front lines of the progressive prosecutor movement in California, with Gascón serving as Boudin’s predecessor in SF. Further, both recall attempts emerged as a reaction to a national spike in crime amplified by a series of viral smash and grab robberies. However, the crime spike occurred across the nation during the pandemic regardless of the ‘tough’ or ‘soft’ policies of the county District Attorney and holding a local official solely responsible for a national problem severely undercuts that rationale for a recall.      These issues and others with the recall process have been noted by activists and politicians alike and movement is underway to bring a suite of reforms before the voters and the state legislature, which a classmate has written at length about.

A Case Study in Independent Redistricting – Washington State

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By Megan Bodenhamer

Any native of Washington State knows, first-hand, the degree of political polarization that exists in the state. The western part of Washington State encompasses the most heavily populated and liberal part of the state, including Seattle and the rest of King County. In contrast, the eastern part of the state is much more conservative and rural. This split makes politics in the state especially contentious and divisive. Interestingly, as a result of this stark geographical and cultural divide, the eastern part of Washington State has threatened to secede and create its own state quite frequently throughout history. 

This split political climate forms the background for all legal and political issues in the state. This is especially true for election laws and redistricting. In most states, politicians or legislatures draw the maps for state elections. In other words, the politicians whose job security depends on elections are the same people who draw the districts that determine the outcome of elections. In places like Washington, where political opinions are deeply entrenched and divisive, this can be problematic. In thirty-four states, districting for state elections is done predominately by state legislatures. Washington is just one of fourteen states that has an independent districting commission. The remaining two states have a hybrid model. 

The body that draws maps in Washington is called the Washington State Redistricting Commission, which is a board made up of five commissioners. Four of the commissioners are selected by the majority and minority leaders in each chamber of the state legislature. These four commissioners, then, vote on a fifth commissioner who serves as the non-voting chair. The non-voting chair’s role is to establish areas of common ground and facilitate compromise. This results in a bi-partisan commission with two seats for the Democratic Party and two seats for the Republican Party, who decide the fifth, non-partisan chair together. This makes Washington unique because it is only one of nine states with a non-politician districting commission. This means that commissioners may not have been elected as a district, county, or state party officer, nor may they have been another type of elected official within two years of appointment to the commission. Additionally, commissioners may not have been a registered lobbyist within one year of appointment. There are also requirements during a commissioner’s appointment. Commissioners may not campaign for elected office or participate in or donate to any political campaign for state or federal elected office. For two years following their service, commissioners may not hold or campaign for congressional or state legislative office. 

In a staunchly divided state like Washington, it would seem beneficial to have a non-politician and bipartisan districting commission. However, it is questionable whether these requirements actually prevent political gamesmanship and gerrymandering. First, the prohibition on politicians is not a difficult hurdle to overcome. Two years without running for public office hardly prevents someone with political motivations or budding political ambitions from being selected to the commission. Further, because commissioners are selected by state legislatures, they are likely colleagues or affiliates of politicians, not far-removed non-partisan individuals as is required. Further, because the majority and minority leaders each get to pick a representative, it is likely they will pick a commissioner that represents their political ideations. Being selected by a group of politicians is not altogether different from the leaders appointing a politician to the commission.

The Washington State Redistricting Commission has not been without its flaws. The Commission was unable to come to a consensus and meet its November 15, 2021, deadline to draw district maps. Instead, the Washington State Supreme Court was tasked with drawing the state’s new legislative maps. In March of this year, the chair of the commission, Sara Augustine, resigned from her position. Her decision came after the commission failed to intervene in a lawsuit regarding its own maps. She claims that in failing to defend the maps, state authorities have undermined the compromise that went into creating maps that protect the public interest. Moreover, the Commission is under suspicion for conducting their deliberations of map drawing in private, in violation of a Washington law called the Open Public Meetings Act. This act requires all meetings of governing bodies of public agencies be open to the public. Clearly, the realities of bipartisan map drawing are not as idyllic as they may seem on paper.

While the basis of a non-politician and bipartisan districting commission sounds like a modern solution to districting issues, Washington State is an important case study testing out this theory. While the Commission may not have been wholly successful, it will be interesting to see how Washington approaches its next redistricting. If Washington, with its intense political polarization, can find a way to manage bi-partisan and apolitical districting, perhaps the rest of the nation could follow its lead.