In December 2021, Black voters and a handful of civic groups sued Baltimore County, Maryland under the Voting Rights Act of 1965 (VRA). The county had just completed redistricting with 2020 census data but the plaintiffs, including the Baltimore County NAACP, requested a map that better reflected the demographic changes of the past decade.
Baltimore County, Maryland is divided into seven single-member districts. In six of those districts, voters have elected exclusively white county council members. There is one majority-Black district where voters have elected a Black council member to represent them ever since the district was first created in 2002.
Maryland state Sen. Charles Sydnor (D) was one of the plaintiffs in the lawsuits. “It wasn’t lost on me that we shouldn’t have to have private organizations suing local governments to make them do right,” Sydnor told Democracy Docket. “Why can’t our local attorney general do something like this? Or why shouldn’t [the attorney general] be able to do something like this?”
As a lawmaker, Sydnor turned his frustration with the lawsuit’s minimal victory into legislation: the Voting Rights Act of 2022, which empowered Maryland’s attorney general to review election law changes before they went into effect and added more legal tools for voters to initiate lawsuits.
Though that legislation did not pass, Sydnor is back with an even more robust state-level act this session. Maryland is not alone: With the U.S. Supreme Court weakening the federal VRA, states are increasingly looking to enact their own state-level protections. In addition to filling a crucial gap, state VRAs emphasize the importance of local policy and local power.
Federal courts have undermined voting protections over the past decade.
Since its enactment in 1965, the federal VRA has been viewed as a landmark achievement for American democracy. Over the past 10 years, however, that sentiment has changed.
In Shelby County v. Holder (2013), the U.S. Supreme Court gutted one of the VRA’s most powerful tools: Section 5, which required states or counties with histories of discriminatory voting practices to receive approval from the federal government before enacting new changes.
In 2021, the Court weakened Section 2 of the VRA, another crucial protection against denying or diluting the voting rights of minority voters. Section 2 might be further eroded by the end of this Supreme Court term in Merrill v. Milligan, a redistricting case out of Alabama.
Lucas Rodriguez, a student in the Election Law Clinic at Harvard Law School, explained to Democracy Docket that the push towards state-level protections goes beyond just the weakening of the federal VRA: “As the federal judiciary seems increasingly hostile to all sorts of voting rights claims — not just discrimination claims, but partisan gerrymandering claims — a lot of folks are looking at state supreme courts,” he described. “We’re really excited to explore state legal systems as a way to empower voters.”
Five states have VRAs and at least four more are looking to advance one this session.
During the current legislative session, Democratic lawmakers have introduced VRAs in Connecticut, Maryland and New Jersey. (The Connecticut proposal was raised as a committee bill in the Government Administration and Elections Committee yesterday.) Plus, Washington legislators are advancing a bill to further enhance and enforce the state’s 2018 law.
In Michigan, like Maryland, Democrats gained trifecta control of state government in the 2022 midterms. Recently, Secretary of State Jocelyn Benson (D) announced that she intends to work alongside election clerks and legislators to draft a Michigan VRA. The legislation has yet to be introduced, but a spokesperson at the secretary of state’s office noted that the drafting process is underway and the bills should be introduced in the coming weeks.
“Last year Michigan citizens voted overwhelmingly to enact an explicit right to vote in our state constitution,” Benson said in a comment provided to Democracy Docket, highlighting a ballot measure approved by voters in November 2022. “In furtherance of that right, and in recognition of the ways courts have weakened the federal Voting Rights Act in recent years, we are working with lawmakers and community leaders to explicitly ban voter discrimination, intimidation and suppression in our state.”
What provisions are typically included in a state VRA?
A state VRA is characterized by the way it empowers voters through the legal system. VRAs are distinct from other omnibus pro-voting bills, such as those advancing in Minnesota and New Mexico, because the latter generally do not create preclearance processes or strengthen the legal bases for challenging unfair election laws. Each VRA can be molded to the particularities of a given state, but some of the most common provisions include preclearance, new causes of action and more.
Preclearance schemes are the heart of VRAs.
Similar to Section 5 of the federal VRA, most state VRAs contain some sort of preclearance scheme where local jurisdictions must receive pre-approval from the state’s attorney general’s office or a court before making certain election law changes. The policies requiring preclearance may include changes to election methods, redistricting and shifts to district boundaries, reduction of polling places or efforts to restrict language access.
Like Maryland’s new proposal, state VRAs can empower state officials to protect voting rights in other ways. “The most important thing, for me, is giving that authority to our attorney general,” Sydnor explained, adding how the Maryland attorney general does not have power beyond statutory authority outlined by the Legislature. “There’s several bills in the legislature trying to expand the attorney general’s authority in a number of areas, and civil rights is one of them.”
State VRAs can reduce the volume of lawsuits by providing alternative resolutions.
In addition to preclearance, another way that state VRAs can limit costly and time-intensive litigation is a settlement process. Rodriguez explained how an individual who wants to bring a claim under a state VRA must first send a letter to the local jurisdiction outlining what the complaint would look like: “That ideally would facilitate a settlement process that avoids the cost of litigation altogether.”
Ruth Greenwood, the director of Harvard Law’s Election Law Clinic, also spoke to Democracy Docket about her experience litigating under state VRAs, including bringing the first case under the Washington VRA. “There was a requirement at the beginning that you send a notice letter and wait six months before you can file a case,” Greenwood detailed. “That meant we had a back and forth with the county lawyers to try to work out what we could do about it.”
Though her first state VRA case moved past the notice letter stage (and the Latino community in Yakima, Washington ultimately prevailed with a beneficial resolution), Greenwood hinted that local governments have now seen the upsides to reaching settlements before litigation.
State VRAs differ from the federal VRA at the remedy stage.
Once a court issues a decision, it must determine what solution is appropriate to address the harm. In some state VRAs, the plaintiffs — the voters or civic engagement groups challenging discriminatory voting practices — can propose the first remedy, such as an improved redistricting map. In addition to lowering the probability of future litigation, the communities at the center of the lawsuit get first pass at fixing the issue.
Statewide election databases improve access to data.
Rodriguez recently testified before the Maryland General Assembly in favor of its proposed VRA, specifically highlighting the importance of a provision that would create a statewide election database. In addition to improving information sharing across the state, “it makes it easier for groups like ours or for everyday people to understand whether an election policy actually has a racially discriminatory impact,” Rodriguez told us. “Whereas before you might have to reach out to local jurisdictions in a very piecemeal manner to do this.”
State VRAs can provide courts with other powerful tools to protect voters.
The legislation can outline a framework for courts to determine whether specific actions by local governments deny or diminish minority voting rights, add additional language access for voters without English proficiency, define the level of protection afforded to voting rights and more.
State VRAs remind us that political power is important, no matter how local.
There are over 10,000 election administration jurisdictions in the United States, from small towns of a few hundred to Los Angeles County with over 5.6 million registered voters. When you add in city councils, public service commissions, school boards and more, it becomes challenging for nationwide pro-voting organizations or the U.S. Department of Justice to fight for fair representation in every deserving case.
For example, the seven-person Baltimore County Council was just one of thousands of political bodies that had to redraw new lines as part of the decennial redistricting process. Under a state VRA, the discriminatory map drawing could have been identified and remedied without the need for a lawsuit.
“With a lot of voting rights organizations, there’s a huge focus on state-level democracy and elections,” Rodriguez emphasized. “There’s not as much effort on the sub-state level, even though local governments play a huge role in our lives.” State VRAs increase the attention on smaller jurisdictions and the myriad of ways that day-to-day policy is shaped by local officials.
“I think they’re a really important way to build power for communities of color,” Greenwood added as a concluding thought. “It’s a bit of a sad reality that we have to go beyond the federal Voting Rights Act, but in that reality, at least there’s somewhere to go.”