Breaking Down Voting Rights Litigation: Part Two

Last week, we covered three commonly litigated topics in voting rights lawsuits. In today’s Explainer, we dive into three more topics and explain how each might appear in a lawsuit defending or attacking voting rights. As we wrote before, voting rights litigation can cover a wide range of topics, all of which are important to ensuring that every eligible voter has the chance to participate in the political process.

Election Administration

There are many aspects to running smooth and secure elections, many of which go on behind the scenes.

What it is: States set different rules for how candidates are listed on a ballot or how ballots are designed, which can then be challenged in court. Local laws also determine if voters can cast a ballot using an alternative method, such as straight-ticket voting (when a voter can cast a vote for all candidates of the same party without individually voting for each one) or ranked-choice voting.

How it disenfranchises voters: How a ballot is designed can affect how a voter fills it out. For example, experts have found that the candidate listed first on a ballot often receives an electoral boost, a phenomenon known as the primacy effect. If a law is designed to favor a certain political party on a ballot by listing them first, that party benefits from the primacy effect and the other party, despite being similarly situated, can lose electoral power. 

Litigation examples: There is currently a lawsuit challenging Arizona’s ballot order law, which requires that the candidates listed first on a county’s ballot must have the same political affiliation as the gubernatorial candidate who won the most votes in that county. The case, which is currently on appeal before the 9th U.S. Circuit Court of Appeals, argues that this law unduly burdens the right to vote in violation of the First and 14th Amendments and treats similarly situated candidates differently without sufficient justification in violation of the 14th Amendment.

Additionally, there is an ongoing lawsuit in Texas challenging the state’s decision to eliminate straight-ticket voting, despite the fact that two-thirds of the state’s voters used the method to cast a ballot in 2018. The lawsuit, which is before the 5th U.S. Circuit Court of Appeals, argues that this law will lead to longer lines and wait times and likely deter voting, along with increasing voter confusion and difficulty in casting a ballot.
What it is: Maintenance of voter rolls is a normal part of any state’s election administration — keeping accurate lists of eligible voters helps elections run smoothly. To protect against improper purges of eligible voters, a variety of state and federal laws govern how lists may be updated. The National Voter Registration Act (NVRA), a federal law, provides that states may remove voters who have died or moved. For voters who are at risk for removal due to a recent change of address, the NVRA ensures that voters receive proper notice so they can confirm whether they have actually moved before their registration is canceled.

How it disenfranchises voters: Despite NVRA protections, states do not always comply with the NVRA and will sometimes remove voters without giving adequate notice and time to respond. Furthermore, third parties that are focused on suppressing voters will try to use the NVRA to push for aggressive voter maintenance programs that can turn into full-fledged voter purges. 

Litigation examples: In a lawsuit in Indiana, a state law that removed voters’ registrations without providing adequate written confirmation or notice procedures was permanently blocked for not complying with the NVRA’s “notice-and-waiting” procedures. This case illustrates the NVRA’s protections in ensuring that voters do not get removed from rolls without proper procedural safeguards. 
 
In Colorado, the conservative group Judicial Watch and a group of voters sued the state alleging that it was not following NVRA list maintenance requirements, despite the fact that Colorado routinely updates its voter rolls in line with the NVRA, in order to advocate for more aggressive voter purges. The court will now have to determine if Colorado’s program is in line with NVRA requirements, in turn potentially affecting the registrations of many Coloradans.

Post-Election Litigation

There are a few avenues to challenge the results of an election through the legal system. Some cases raise legitimate concerns about an election’s outcome, while some can be ill-intentioned and not grounded in facts. 

What it is: Once a canvass of election results is complete and the certified results are released, some races will proceed to a recount where ballots are retabulated to confirm the original results. In some states, there will automatically be a recount if the vote margin of the certified result is within a certain range. For example, Pennsylvania conducts an automatic recount if the margin of victory is 0.5% or less. In other states, there are no automatic recounts. Instead, the trailing candidate (or, in a small number of states, voters) can request a recount by filing paperwork with the election official or in court. Some states only allow the trailing candidate to request a recount if the vote margin is within a certain range. 

How it disenfranchises voters: Recounts ensure that, when a race is extremely close, all eligible votes are counted. While recounts are a way to ensure that all voters are enfranchised (though it’s important to remember that recounts almost never flip the results of the election), they can sometimes be weaponized to cast doubt on the validity of election results, or the results of recounts can be challenged in court.

Litigation examples: Following the 2020 presidential election, recounts were conducted in Georgia and Wisconsin, two swing states that narrowly went for President Joe Biden. Other litigation can come from certified results — look at the fraudulent Republican “audit” that took place in Arizona after Trump lost the state and lawsuits filed around how the audit was conducted.
What it is: Even if results are certified and a recount confirms their accuracy, candidates, voters or third-party organizations may still file post-election lawsuits challenging the validity of those results due to any number of reasons. A candidate may file a formal election contest in a state court or legislative chamber challenging the validity of the election. Or, an individual or group may file a lawsuit challenging election results based on claims about the validity of certain absentee ballots, processes for counting ballots or an election practice that they feel violated state or federal law.

How it disenfranchises voters: A side effect of unnecessary or meritless post-election litigation is a decrease in voter confidence in the United States’ election system. Legal documents containing unfounded allegations of voter fraud or improper election procedures can dispel myths about voting and elections that persist long after the case is over.

Litigation examples: We saw Republicans file many post-election lawsuits following the 2020 election. The Trump campaign and his allies also tried to block the certification of election results through the courts, filing lawsuit after lawsuit either seeking to stop certification or decertify certain results based on baseless claims of fraud. All of these lawsuits were found meritless by courts around the country and some of Trump’s lawyers were sanctioned for their attempts to change election outcomes through the legal system.

Redistricting

The redistricting process occurs across the country every 10 years following the release of census data. Redistricting is fraught with litigation as challenging unlawful maps in court is an important way to guarantee districts are fair and representative of the people they encompass. Redistricting lawsuits may fall into one of the following categories.

What it is: When control of redistricting is divided, politicians sometimes fail to reach an agreement on a new redistricting plan. Impasse litigation allows voters to sue to ensure new districts are enacted before the next election. In essence, if the politicians controlling redistricting in a state are deadlocked (or likely to become deadlocked), voters can sue to overcome this impasse.

How it disenfranchises voters: If new, fairly apportioned districts are not in place before an election cycle, there is a risk that voters will not have adequate representation (unless deadlines are pushed back, which can then result in voter confusion).

Litigation examples: Impasse litigation allows the courts to step in and take control of mapmaking. They can block the state from using outdated maps in the next election and appoint special redistricting panels if politicians are unable to draw new maps in time. This relief ensures the new census data is used to redraw district lines and that voters have equitable voting power in advance of future elections. There is ongoing impasse litigation in Louisiana, Minnesota and Wisconsin where new maps have not yet been enacted and seem unlikely to be in place before the 2022 election cycle without court intervention.
What it is: A crucial component of map drawing is ensuring that each person’s vote carries the same weight as another’s — a principle known as one person, one vote. This requires states to draw districts that are roughly equal in population.

How it disenfranchises voters: Malapportioned districts can result in vote dilution when one vote has less impact on the outcome of an election than another because of the way districts are drawn. 

Litigation examples: Litigation can help ensure that districts have roughly the same population and, as the U.S. Supreme Court has explained, “that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” Lawsuits can sometimes appear around prison gerrymandering laws, which go to the heart of the one person, one vote principle.
What it is: District lines can be drawn in a way that prevents a minority group from electing any of its preferred candidates, even when the minority group represents a significant portion of the state’s voting population. This is known as vote dilution. This is prevalent in areas with racially polarized voting when members of a minority group routinely vote for a different candidate than the members of the majority. Minority groups might be “packed” into certain districts to limit their influence in other districts, or they may be “cracked” among several districts to ensure that they do not have enough voting power to elect their candidate of choice.

How it disenfranchises voters: When the voting strength of minority voters is diluted, those voters do not have the ability to elect their candidate of choice, which in turn means that they do not receive adequate representation in their state legislatures and Congress. 

Litigation examples: Section 2 of the Voting Rights Act (VRA), which prohibits any law that infringes on the right to vote “on account of race, color, or previous condition of servitude,” provides an avenue to challenge maps that do not fairly represent minority voters. In 1986, the U.S. Supreme Court established three criteria for establishing a pattern of racial vote dilution. These criteria are used in present vote dilution cases to determine if voters of color can elect their candidate of choice.
What it is: Partisan gerrymandering is when district lines are drawn to benefit a particular political party and increase its overall share of seats. You can read more in-depth about partisan gerrymandering here or here.

How it disenfranchises voters: When maps are drawn to favor one political party over another, election results are predetermined and voters have no ability to influence the outcome. 

Litigation examples: Though the Supreme Court ruled that partisan gerrymandering cannot be litigated in federal court, it can still be banned by state constitutions and challenged in state courts. Pennsylvania’s congressional map enacted following the 2010 census was challenged in state court after the GOP-led Legislature drew the map so that 13 of the 18 districts were solid Republican districts, despite the statewide vote evenly splitting 50/50 between parties in presidential, senatorial and gubernatorial elections. The Pennsylvania Supreme Court found the map deprived voters of their right to a free and fair election guaranteed by the Pennsylvania Constitution and released a new congressional map to be used for the 2018 elections.
What it is: When race is used as the predominant factor in drawing new districts absent a compelling reason, this is known as racial gerrymandering. Race may not be used as the predominant factor in redistricting unless there is a compelling reason, such as needing to comply with Section 2 of the VRA or a state interest.

How it disenfranchises voters: Minority voters can lose voting power when race is used as the predominant factor in redistricting without a compelling reason. Racial gerrymandering can often lead to the packing or cracking of minority voters across districts, denying voters an equal opportunity to participate in the political process and have their voices heard in violation of the 14th Amendment.

Litigation examples: Lawsuits are brought to challenge the use of race in the redistricting process without a compelling reason. North Carolina’s congressional districts passed following the 2010 census were challenged for being racial gerrymanders in Cooper v. Harris. A federal district court held that the two challenged districts were unconstitutional and ordered the drawing of new congressional districts. Specifically, the court found that “the legislature assigned race a priority over all other districting factors” and concluded that the North Carolina Legislature “packed” Black voters into these districts without a compelling reason, which the Supreme Court affirmed. You can learn more about the history of how courts have ruled in racial gerrymandering cases here.