With the Voting Rights Act facing more threats, advocates renew a push for state laws

With Republicans set to control Congress and the White House starting next year, some voting rights advocates are renewing their focus on protections against racial discrimination in elections that don't rely on the federal government.

Several states have enacted state-level voting rights acts over the past two decades, and Democratic-led Michigan may be next. This week a state House committee voted to refer a set of state Senate-approved bills to the House floor.

Supporters of this emerging type of law see it as a bulwark at a time when Democratic-led efforts to bolster the federal Voting Rights Act are likely to remain stalled under a GOP trifecta of power in Washington, D.C.

That landmark 1965 law is also under scrutiny in a federal lawsuit out of North Dakota. An appeal by Republican state officials in the case could end up making it harder to enforce the law's key remaining provisions that the U.S. Supreme Court's conservative majority has not struck down.

"We can expect attacks rather than progress at the federal level, and states must take up the mantle to protect their own voters," says Adam Lioz, a senior policy counsel for the Legal Defense Fund, who leads the organization's campaign for more states to pass their own voting rights acts.

So far, it's a small club of eight mostly blue states with these laws, which offer racial minority groups protections beyond those under the federal Voting Rights Act — California (the first to enact one in 2002), Connecticut, Illinois, Minnesota, New York, Oregon, Virginia and Washington.

A controversial ruling by a state judge in New York last month has resurrected the specter of all state voting rights acts potentially being found to violate the U.S. Constitution.

Still, voting rights advocates say they see an opportunity during the second Trump administration to enshrine more state laws that outlaw race-based discrimination in voting, redistricting and other parts of the electoral process.

Why state voting rights acts are challenging to enact, even in blue states

While each act is different, their legal protections for voters of color generally focus on state and local elections, bringing attention to a level of democracy that advocates say often gets overlooked.

"It allows voters to challenge laws that have a discriminatory impact. It gives voters the power to enforce their own right to equally participate in elections," says Lata Nott, senior legal counsel for voting rights at the Campaign Legal Center.

In Connecticut, New York and Virginia, state voting rights acts also set up a process for certain local officials to get approval from their state attorney general's office or a court before they can make certain changes to election rules — similar to the federal Voting Rights Act's preclearance process that the U.S. Supreme Court effectively dismantled in 2013.

These kinds of legal tools can be empowering for voters of color in all states, voting rights advocates contend.

"In a blue state, people often think that voter suppression is a red-state thing and not a blue-state thing. But it's not that simple," Nott says, pointing to the Democratic-led states of Maryland and New Jersey, where state voting rights acts have been introduced. "They're two of the most diverse states on the East Coast. And they both have communities of historically disenfranchised voters who could use these protections."

Nuzhat Chowdhury, senior counsel for the New Jersey Institute for Social Justice's democracy and justice program, has been pushing for lawmakers to advance a proposed state voting rights act since 2023.

"The biggest struggle that we have faced over the past two years of this campaign has been getting any sort of urgent buy-in from the legislature," Chowdhury says. "We hope and anticipate that the [2024 election] results really light a fire under them and really stress to them the urgency with which we need a state voting rights act, because it seems more and more likely that the federal VRA will continue to be quite gutted in the next four years."

It's a potential scenario that Aly Belknap has been preparing for in Colorado. The executive director of Common Cause's affiliate in that blue state says she expects a Colorado voting rights act bill to be introduced during the legislative session that starts in January.

"A challenge that we face in Colorado is a pretty depleted state budget. The cost-bearing pieces of this bill, we need to figure out how our state is going to make it happen in a very difficult budget environment," Belknap adds, pointing, as examples, to the costs of proposals for the state attorney general's office to enforce the law and expanding access to multilingual ballots.

In Michigan, Lioz of the Legal Defense Fund sees a fast-closing window to enact a law before Democrats lose control of the state House to Republicans next year.

If lawmakers don't act soon, "the chances go very substantially down that we could see a Michigan voting rights act in the near future," Lioz says. "Of course, we would continue to fight it and we would look for further openings down the line. But right now, the iron is hot."

State voting rights acts are facing challenges in court

Back on the East Coast, legal challenges against New York's voting rights act are heating up with potential implications for similar state laws around the country.

A group of Black and Latino voters is appealing last month's ruling by Orange County state court Justice Maria Vazquez-Doles, who struck down New York's law after finding that it violates the equal protection clause of the 14th Amendment. Oral arguments before an appeals panel are scheduled for Dec. 18.

The controversial ruling comes out of a New York voting rights act lawsuit challenging the election system for the town board of Newburgh, N.Y. In the suburb north of New York City, the plaintiffs argue, voting is racially polarized between Black and Hispanic voters and white voters who do not identify as Hispanic.

The town's system of electing candidates as at-large representatives of one voting district dilutes the collective voting power of Black and Hispanic voters, they contend, taking away their ability to elect their preferred candidate. The current town board members are all white Republicans.

"We feel we don't have a voice. We don't have someone at the table," says Ernie Tirado, one of the Latino voters who brought the lawsuit and serves as treasurer of the Town of Newburgh Democratic Committee. "That's not for lack of trying because we've had candidates run."

Vazquez-Doles, however, dismissed the case and struck down New York's voting rights act, citing the U.S. Supreme Court's 2023 ruling against race-based affirmative action. The U.S. Constitution's equal protection clause, the state judge wrote, "prohibits discrimination against all people, not just those classes who have experienced historic discrimination or who experienced such morally repugnant treatment to a degree greater than other people."

Advocates of state voting rights acts, however, say they have seen similar challenges to the constitutionality of California and Washington's laws ultimately fail in court and expect the judge's ruling to be overturned in the end.

Still, another ongoing New York voting rights act case is treading new legal ground that could be the basis of another constitutional challenge to these state laws. The Nassau County-based case is the first-ever lawsuit challenging a redistricting map by using a state voting rights act. Oral arguments are set for Friday over the county's request for a state judge to rule without moving forward with a trial that's scheduled to start Dec. 17.

No matter what the courts decide, however, state voting rights acts have shown to be a limited solution, notes Spencer Overton, a professor who directs George Washington University Law School's Multiracial Democracy Project.

"Over 50% of Black Americans live in the South, and only Virginia currently has a state voting rights act," Overton says. "The South has had some of the most racially polarized voting in the past, and that increases incentives for incumbent local politicians to enact voting laws that contain the voting strength of voters of color."

Bills have been introduced in Alabama, Florida and Georgia, all GOP-controlled southern states. And so far, no state with a unified Republican government or a divided government has passed a voting rights act.

"If you are in a state without state voting protections, where you have incumbents who utilize discriminatory practices, you really do need federal protections," Overton says.

Edited by Benjamin Swasey