States move to shore up protections after courts erode federal safeguards
ST. PAUL, MINN. >> An appeals court ruling that weakened a key part of the Voting Rights Act is spurring lawmakers in several states to enact state-level protections to plug gaps that the ruling opened in the landmark federal law aimed at prohibiting racial discrimination in voting.
Democratic-led states have been taking matters into their own hands because national legislation to expand voting rights remains stalled in a divided Congress. Meanwhile, Republican lawmakers in many states have tried to erode safeguards in the name of protecting election integrity amid former President Donald Trump's false claims that vote fraud cost him the 2020 election.
Legislators in Minnesota, Michigan, Maryland, New Jersey and Florida are pursuing state voting rights acts, building on ones enacted by New York in 2022 and Connecticut in 2023, as well as ones enacted earlier in Virginia, Oregon, Washington and California.
“And we know of interest from other states that are considering taking up state VRAs in the next year or so,” said Michael Pernick, an attorney for the NAACP Legal Defense Fund in New York.
In Minnesota, Democratic Rep. Emma Greenman, of Minneapolis, said she felt an urgent need to act after the 8th U.S. Circuit Court of Appeals ruled last year in an Arkansas case that voters and groups could no longer sue under Section 2 of the federal Voting Rights Act — only the U.S. attorney general.
Section 2 prohibits voting practices or procedures that discriminate on the basis of race, including maps that disadvantage voters of color. Lawsuits have long been brought under the section to try to ensure Black voters have adequate political representation in places with a long history of racism, including many Southern states.
The appeals court decision currently applies only to the seven states in the 8th Circuit, which stretches from Minnesota to Arkansas. Legal observers expect the case to end up before the U.S. Supreme Court.
“As with other areas of policy, what you're seeing is, states really have to say, `We need to make sure that ... we have a system that is free from discrimination, we need to protect the rights of voters,'” Greenman said.
The 1965 Voting Rights Act is seen as a crowning achievement of the civil rights movement. But federal courts have “chipped away” at it over the decades, said Lata Nott, an attorney with the Campaign Legal Center in Washington, D.C., who testified for the Minnesota bill.
The biggest blow to the federal law in the view of voting rights advocates was a 2013 Supreme Court ruling in an Alabama case that stripped the government of a potent tool to stop voting bias by eliminating the requirement that jurisdictions with a history of racial discrimination in voting get “preclearance” from the federal government for major changes in the way they hold elections.
Conservatives have argued the requirement did not account for racial progress and other changes in society and that existing voting rights protections are adequate.
“It looks like this an effort by the Left in the state to do at the state level what they can't do at the federal level under the VRA,” said Zack Smith, a legal fellow at the conservative Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies.
The 8th Circuit decision sounded new alarms because most lawsuits to enforce the act have come from private individuals and groups, not the Justice Department, Nott said. Administrations change, so allowing people to protect their own voting rights is a “valuable enforcement mechanism,” she said.
There are broad similarities among the various state voting rights acts under consideration and the New York and Connecticut laws. They all give voters and groups a “private right of action” to challenge laws that dilute or suppress the votes of people of color, Pernick said. That's the right the 8th Circuit struck down on the federal level.
Some of the state proposals also include preclearance requirements for changes in voting to make sure they don't harm voters of color.
The Minnesota proposal is expected to get floor votes soon as part of a broader election policy bill, and the sponsors said they are cautiously optimistic about passage. The Maryland proposal has had hearings, while an effort in Michigan is expected to get hearings in April, Nott said.
Several state proposals include “safe harbor” provisions to try to head off the kind of lengthy, expensive litigation that often has been needed to enforce the federal law.
The Minnesota bill, for example, would require potential plaintiffs to notify political subdivisions before they sue to create opportunities to negotiate remedies first.
Minnesota has an image as progressive on voting rights, and the current Legislature is the most diverse in state history. But witnesses who testified before the Legislature recently said there are still problems.
They point to data showing county boards across the state, which make important decisions affecting communities of color, are disproportionately white.