New Horizons for Protecting and Expanding Voting Rights in the States
May 8, 2025
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Our Mission
To train the next generation of lawyers in the law and practice of voting rights, ballot access, campaign finance, election administration, and democracy protection.
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By Samuel Davis
May 8, 2025, 10:10 AM
For more than a decade, voting rights scholars and practitioners have been mourning the impending demise of the federal Voting Rights Act. Certainly since Shelby County v. Holder,[1] where the U.S. Supreme Court gutted the “crown jewel of the civil rights movement.”[2] Even before Shelby County, the Court’s redistricting cases were starting to reflect “a profound and growing disagreement on the current need for and relevance of the VRA for the politics of the 21st century.”[3] For minority voters nationwide, and especially in jurisdictions previously covered by Section 5, the consequences of the federal VRA’s diminishment have been stark.[4] But warranted pessimism about the future of the federal VRA has pushed advocates to look beyond federal courts to develop alternative strategies for securing and advancing voting rights. Just as Rucho v. Common Cause[5] produced an upswell of interest in using state constitutions to combat partisan gerrymandering,[6] the steady erosion of the federal VRA[7] has forced advocates to look to the states. Enter the state VRA (“SVRA”).
SVRAs are not an entirely new phenomenon: California enacted the nation’s first in 2002.[8] But as my colleagues Ruth Greenwood and Nicholas Stephanopoulos explained in a 2023 article in the Emory Law Journal, “it’s only more recently that voting rights federalism–the adoption of SVRAs diverging from the baseline of the [federal] VRA–has come into its own.”[9] These more expansive SVRAs—including the New York VRA (“NYVRA”), signed into law in 2022—serve a dual function. First, these SVRAs seek to preserve rapidly vanishing protections once afforded under the federal VRA to deter three kinds of harms: “(1) racial vote denial, the disproportionate suppression of minority members’ votes; (2) racial vote dilution, the diminution of minority voters’ representation by their preferred candidates; and (3) retrogression, the worsening of the electoral position of minority members relative to the status quo ante.”[10] Second, these SVRAs move “beyond the federal floor” to offer more expansive protections than were ever ordinarily available under the federal VRA,[11] including protections designed to reflect the residential patterns of a society that is much less segregated than it was in the 1960s—for example, by expressly providing for remedies other than single-member districts to protect voters in integrated jurisdictions from racial vote dilution.[12]
To be sure, there are downsides to relying on SVRAs to do the work once carried out under federal law. SVRAs are only enforceable in states where there is the political will to enact them. So far, that has only been a handful of primarily northern and western states,[13] which means voters in many places with particularly egregious histories of racial discrimination in voting—including the entirety of the deep south—are unprotected.[14] Even in states that have enacted SVRAs, state-specific political dynamics may limit their reach and efficacy: just two years after signing the Connecticut VRA into law, Governor Ned Lamont proposed an appropriation bill that significantly reduced funding for the Secretary of State’s office, jeopardizing its ability to implement reforms mandated by the law.[15] Litigating under SVRAs also requires advocates to develop a new jurisprudence in a niche area of law in state courts that have likely had significantly less exposure to concepts like racially polarized voting (and the technical analyses used to prove it) than the federal judiciary.[16]
Yet these challenges are also, often, opportunities. Advocates in Florida, Alabama, Texas, and other states have introduced proposed SVRAs that, while having little chance of being enacted into law under present political conditions, helped mobilize pro-democracy coalitions and train attention on ongoing discrimination in their states’ respective election systems.[17] Passing SVRAs with preclearance provisions has enabled state agencies to begin oversight of, and issue guidance to, local officials and to commence ongoing enforcement of voter protections.[18] Litigants in California, Washington, and New York (as discussed below) have persuaded state appellate courts to affirm that their respective SVRAs can and do diverge from the federal VRA’s strictures.[19] At the federal level, efforts to revitalize Section 5 or to enact more ambitious pro-voter laws, for the moment at least, seem doomed to founder on the shoals of political gridlock,[20] procedural norms like the filibuster,[21] and an ascendant hostility to basic democratic principles.[22] SVRAs, while no panacea, can open new horizons for pro-democracy organizing, advocacy, and litigation.
Both the promise, and potential limitations, of SVRAs can be seen in early litigation to enforce the NYVRA in New York state courts.
Two of the first cases filed under the NYVRA involved efforts by Black and Latino voters to secure meaningful opportunities to be represented on their town governing boards: Serratto v. Town of Mount Pleasant and Clarke v. Town of Newburgh. In Serratto, the plaintiffs are Latino residents, most of whom live a heavily-Latino incorporated village within Mount Pleasant, Sleepy Hollow.[23] In Clarke, the plaintiffs are Black and Latino residents who brought a “coalition” claim on behalf of both communities,[24] as expressly allowed under the NYVRA.[25] In both cases, the plaintiffs challenged an at-large elections system that, they alleged, impermissibly diluted their voting power.[26] Although the NYVRA—in a notable departure from the federal VRA—allows plaintiffs to prove vote dilution based on either racially polarized voting or exclusion from the political process under the totality of the circumstances (provided they can also show that the current electoral system is impairing their voting power),[27] the Serratto and Clarke plaintiffs presented evidence on both prongs, including evidence of extensive and ongoing discrimination affecting their respective communities.[28]
In both cases, before reaching the merits, the courts were first called upon to answer threshold questions regarding the NYVRA’s constitutionality. In Serratto—after Mount Pleasant’s own expert concluded that voting in Mount Pleasant was highly racially polarized and that only one Latino-preferred candidate had ever prevailed in a town election—the Town asserted that the NYVRA’s vote dilution provisions could not be applied because they were hopelessly indeterminate.[29] Specifically, the Town claimed that the NYVRA left it unclear whether plaintiffs could prove racial vote dilution based solely on a showing of racially polarized voting, or whether plaintiffs also needed to show that they would have a greater opportunity to elect candidates of choice under a reasonable alternative electoral system.[30] Absent the latter requirement, they argued, the NYVRA would engender endless litigation, as any voter could win a vote dilution claim anytime there was racially polarized voting, irrespective of whether that voter’s voting power was actually affected by the challenged electoral system.[31]
In Clarke, the Town raised a more fundamental objection to the NYVRA’s vote dilution provisions, arguing that they were a facially unconstitutional racial classification in violation of the Fourteenth Amendment’s Equal Protection Clause.[32] Newburgh offered an aggressively expansive interpretation of the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., which struck down affirmative action policies in university admissions.[33] They argued that SFFA articulated a broader equal protection principle, applicable in all contexts, that forbade allocating “benefits or burdens” to anyone on the basis of any individual’s race.[34] The Town’s conflation of race consciousness to remedy racial vote dilution liability and affirmative action ran into one immediate problem: it was difficult to square with the U.S. Supreme Court’s decision endorsing race-conscious remedial action under Section 2 of the federal VRA in Allen v. Milligan, issued the same term as SFFA.[35] So, the Town advanced a more nuanced argument: even if race conscious remedies were permissible under Section 2, it was because the federal VRA itself was subject to strict scrutiny but passed as an exercise of Congress’s enforcement authority under the Reconstruction Amendments.[36] States, they argued, possessed no such authority to enact legislation requiring state actors to implement race conscious remedies.[37]
Answering the questions raised by Serratto and Clarke, defendants required courts to grapple with the complicated, and contested, interrelationship between the NYVRA, other SVRAs, the federal VRA, and the federal constitution. The first court to give its answer, the trial court in Clarke, agreed with the Town that the NYVRA mandated impermissible race-based state action and entered a sweeping order holding the NYVRA facially unconstitutional in its entirety.[38] But, as the Second Department explained on appeal, this conclusion was untenable. The NYVRA, like Section 2 and other SVRAs, was a facially neutral statute that “does not favor any race over others or allocate burdens or benefits to any groups on the basis of race,” and thus was not itself subject to strict scrutiny.[39] While jurisdictions would need to account for race to avoid (or remedy) liability for vote dilution, that did not subject the NYVRA to strict scrutiny, either: jurisdictions and courts crafting remedies for racial vote dilution may, as the U.S. Supreme Court affirmed in Milligan, permissibly consider race, as they frequently must.[40] If the Town were found liable for vote dilution but believed that race predominated in the crafting of a remedy, it could raise an as-applied challenge to that particularremedy, as defendants routinely do in raising racial gerrymandering claims to challenge Section 2 remedies.[41] And the New York legislature did not need to rely on the Reconstruction Amendments for its authority to enact facially neutral antidiscrimination statutes like the NYVRA; while the state was bound to comply with the Fourteenth Amendment, “the New York State Legislature has the authority to enact statutes that protect against racial discrimination pursuant to its general police power.”[42]
The Second Department’s opinion did draw from federal VRA cases in interpreting the NYVRA, but the Second Department took pains to give meaning to the distinctions between the two laws. For example, the court explained that the NYVRA—like SVRAs in California and Washington—was not unconstitutional because it failed to incorporate the first Gingles precondition. Rather, because “race-based districting is only one of the possible remedies under the NYVRA . . . [and] contemplates remedies that do not sort voters based on race, such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms,” “it was rational for the New York Legislature to not include the first Gingles precondition as a precondition to liability under the NYVRA.”[43] Similarly, the court rejected the argument that plaintiffs under the NYVRA needed to prove both racially polarized voting and exclusion from the political process under the totality of the circumstances, acknowledging that, in this respect, “the text of the NYVRA is unlike the FVRA.”[44] And the court’s ultimate holding rested purely on state law: Newburgh could not pursue its claims because the Town, as a municipal entity, lacked capacity to raise facial constitutional challenges state statutes absent a showing that compliance would force it to violate the U.S. Constitution, a showing the Town had failed to make.[45]
Although the cases were not technically consolidated, the Second Department’s decision in Clarke answered most of the constitutional questions raised by Mount Pleasant in Serrato. On the Town’s central contention—that it was unclear what plaintiffs needed to prove to win a vote dilution claim—the Second Department offered clarity: “in order to obtain a remedy under the NYVRA, a plaintiff still must show that ‘vote dilution’ has occurred (Election Law § 17–206[2][a]), and that there is an alternative practice that would allow the minority group to ‘have equitable access to fully participate in the electoral process.’”[46] Or, as the Westchester County Supreme Court put it in a subsequent order, “the NYVRA is not unconstitutionally vague and, indeed, the Second Department in Clarke analyzed and applied the very provisions defendants allege to be ‘incoherent’ here without apparent difficulty.”[47] Importantly, the Westchester Supreme Court also reaffirmed the NYVRA’s liberal standing requirements, consistent with New York law, concluding that the Latino plaintiffs had alleged “a[] purported dilution of their votes [that] clearly falls within the zone of interest sought to be protected by the [NYVRA].”[48]
Together, the decisions in Clarke and Serrato—along with the Nassau County Supreme Court’s decision in Coads v. Nassau County, which rejected arguments like those raised in Clarke[49]—clear the way for advocates to use the NYVRA to attack discriminatory electoral systems and practices across New York. The plaintiffs in Clarke and Serrattowill soon get their day in court. Still, looming questions remain. Newburgh sought immediate appellate review of the Second Department’s decision rejecting its equal protection theory in the New York Court of Appeals.[50] The Westchester County Supreme Court’s order in Serrato raises questions about the scope of the NYVRA’s protections for language minorities and what precisely plaintiffs must show to prove racially polarized voting in vote dilution cases.[51]Elsewhere, the New York Attorney General is defending its authority to administer the NYVRA’s preclearance regime in a lawsuit filed by Orange County and the Orange County Board of Elections.[52] In New York, these issues will get hashed out in courts and in the legislature, all on the shifting terrain of the U.S. Supreme Court’s ever-evolving equal protection jurisprudence. But, for now at least, SVRAs offer a jolt of energy to the centuries-long movement for a true multiracial democracy.
ABOUT THE AUTHOR
Samuel Davis is a clinical instructor and attorney in the Election Law Clinic at Harvard Law School, where he litigates voting rights cases in state and federal courts nationwide. Previously, he served as a Liman Fellow at the ACLU of North Carolina Legal Foundation and was an associate at a plaintiff-side workers’ and civil rights firm in Boston. After graduating from Yale Law School, Samuel clerked for Associate Justice Anita Earls on the North Carolina Supreme Court.
[1] 570 U.S. 529 (2013).
[2] See, e.g., Heather Gerken, Goodbye to the Crown Jewel of the Civil Rights Movement: People Died to Pass Section 5 of the Voting Rights Act, but That Didn’t Save It at the Supreme Court, Slate (June 25, 2013), http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/supreme_ court_and_the_voting_rights_act_goodbye_to_section_5.html.
[3] See Guy-Uriel E. Charles & Luis Fuentes-Rohwer, The Voting Rights Act in Winter: The Death of A Superstatute, 100 Iowa L. Rev. 1389, 1420 (2015).
[4] See, e.g., Kevin Morris & Coryn Grange, Growing Racial Disparities in Voter Turnout, 2008–2022 at 3, Brennan Center for Justice (March 2024) (“We find that while the [racial turnout] gap is growing virtually everywhere, Shelby County had an independent causal impact in regions that were formerly covered under Section 5. By 2022, . . . the turnout gap grew almost twice as quickly in formerly covered jurisdictions as in other parts of the country with similar demographic and socioeconomic profiles.”), https://www.brennancenter.org/our-work/research-reports/growing-racial-disparities-voter-turnout-2008-2022.
[5] 588 U.S. 684 (2019).
[6] See, e.g. Samuel S.-H. Wang et. al., Laboratories of Democracy Reform: State Constitutions and Partisan Gerrymandering, 22 U. Pa. J. Const. L. 203 (2019); Jonathan Cervas, Bernard Grofman, and Scott Matsuda, The Role of State Courts in Constraining Partisan Gerrymandering in Congressional Elections, 21 U.N.H.L. Rev. 421, 425 (2023).
[7] See, e.g., Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 691-92 (2021) (Kagan, J., dissenting) (“Today, the Court undermines Section 2 and the right it provides. . . . What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”); Petteway v. Galveston Cnty., 111 F.4th 596, 615 (5th Cir. 2024) (Douglas, C.J., dissenting) (“Today, the majority finally dismantled the effectiveness of the Voting Rights Act in this circuit, leaving four decades of en banc precedent flattened in its wake.”); Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment, 86 F.4th 1204, 1218 (8th Cir. 2023) (“I respectfully dissent from the court’s holding that private plaintiffs lack the ability to sue under § 2 of the Voting Rights Act (VRA). . . . Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”).
[8] See Cal. Elec. Code §§ 14025-14032 (2002).
[9] Ruth M. Greenwood & Nicholas O. Stephanopoulos, Voting Rights Federalism, 73 Emory L.J. 299, 301 (2023).
[10] Id. at 303.
[11] Id. Even before the most recent era of retrenchment, many scholars and practitioners have pushed to look beyond the federal VRA as interpreted in Gingles. See, e.g., Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 Mich. L. Rev. 1077, 1101 (1991) (arguing that the coalescence around minority-majority single-member districts under the federal VRA “inescapably closed the door on the real goal of the civil rights movement, which was to alter the material condition of the lives of America’s subjugated minorities”) (internal quotation marks omitted).
[12] See, e.g., N.Y. Elec. Law § 17-206(5)(a)(ii) (deeming “an alternative method of election” other than a “district-based method of election” to be an “appropriate remedy” for racial vote dilution).
[13] As of this writing, SVRAs have been enacted in New York, Connecticut, Virginia, Minnesota, Oregon, Washington, California, and Illinois. See National Conference of State Legislatures, State Voting Rights Acts (last accessed Apr. 18, 2025), https://www.ncsl.org/elections-and-campaigns/state-voting-rights-acts.
[14] The only state below the Mason-Dixon line to adopt a SVRA was Virginia in 2021. See Senator Jennifer L. McClellan, The Voting Rights Act of Virginia: Overcoming A History of Voter Discrimination, 26 Rich. Pub. Int. L. Rev.111, 149 (2023) (“As other states moved to restrict the vote, Virginia became the first in the South to pass its own voting rights legislation”).
[15] See, e.g., Brandon Whiting, Secretary of State asks again for increased early voting funds, Inside Investigator (Feb. 17, 2025) (“At Friday’s Appropriations Subcommittee meeting, Secretary of State Stephanie Thomas again pled her case for more funding of the state’s Early Voting Initiative in the biennial budget. Her pleas come in the face of Lamont’s biennial budget proposals that include a 50% cut to the state’s current $1.3 million early voting budget for the next two years.”), https://insideinvestigator.org/secretary-of-state-asks-again-for-increased-early-voting-funds/.
[16] See Allen v. Milligan, 599 U.S. 1, 19 (2023) (noting that the Supreme Court “ha[s] applied Gingles in one § 2 case after another, to different kinds of electoral systems and to different jurisdictions in States all over the country”).
[17] See e.g., Jackie Llanos, Voting rights day of action takes renewed meaning honoring Sen. Thompson, Florida Phoenix (Mar. 26, 2025), https://floridaphoenix.com/2025/03/26/voting-rights-day-of-action-takes-renewed-meaning-honoring-sen-thompson/ (discussing introduction of Harry T. and Harriette V. Moore Voting Rights Act); See Jemma Stephenson, Bill would expand voting access in Alabama, create oversight commission, Alabama Reflector (Aug. 21, 2024), https://alabamareflector.com/2024/08/21/bill-would-expand-voting-access-in-alabama-create-commission-to-review-local-laws/; Progress Texas, RELEASE: Voting Rights Advocates Cheer The Barbara Jordan Texas Voting Rights Act (Apr. 2, 2025), https://progresstexas.org/release-voting-rights-advocates-cheer-barbara-jordan-texas-voting-rights-act.
[18] See New York State Attorney General’s Office, Notice of Proposed Rulemaking: Preclearance pursuant to the New York Voting Rights Act (last accessed Apr. 18, 2025) https://ag.ny.gov/resources/organizations/new-york-voting-rights-act/notice-of-proposed-rulemaking.
[19] See, e.g., Pico Neighborhood Assn. v. City of Santa Monica, 15 Cal. 5th 292, 319 (2023) (explaining that “Gingles’s majority-minority requirement is a poor fit for the [California] VRA”); Portugal v. Franklin Cnty., 530 P.3d 994, 1001 (Wash. 2023), cert. denied sub nom. Gimenez v. Franklin Cnty., Washington, 144 S. Ct. 1343 (2024) (“Both the [Washington] VRA and Section 2 of the [federal] VRA prohibit vote dilution. However, there are significant differences between the two, which affect both the range of available remedies and the elements required for a successful claim.”) (internal citations omitted).
[20] See Maureen Edobor & Christopher B. Seaman, Foreword: Voting Rights in a Politically Polarized Era, 81 Wash. & Lee L. Rev. 965, 973-74 (2024) (“[T]he once bipartisan consensus in favor of protecting voting rights has broken down. The Voting Rights Act of 1965 was passed by overwhelming majorities of both Republicans and Democrats, and subsequent amendments in 1970, 1985, 1982, and 1992 were enacted with similarly large margins. Despite resistance from some conservative Republicans, the most recent revision of the Voting Rights Act in 2006 ultimately passed by even larger margins than the original law. But since then, voting rights legislation has languished at the federal level. Repeated efforts to amend the coverage formula for the preclearance requirement after Shelby Countydied in committee.”).
[21] Id. at 974 (“After Democrats recaptured the House of Representatives in 2018, that body passed both the John R. Lewis Voting Rights Advancement Act, which would have created a new coverage formula based on a more recent record of voting rights violations, and the broader For the People Act, which would have, inter alia, expanded voter registration options, increased voter access to the polls through early vote and vote-by-mail alternatives, and required states to establish independent redistricting commissions. However, both bills ultimately were killed by a Senate filibuster.”)
[22] Carolyn Shapiro, Democracy Hypocrisy, 2024 U. Ill. L. Rev. 1737, 1754-55 (2024) (“The trappings of democracy—its basic institutions, the fact of having elections, etc.—may not alone be enough to stave off autocracy. What matters is a deep commitment to democratic norms, which too much and too rigid attention to structure can undermine. That necessary commitment to democratic norms, unfortunately, appears lacking. Others have noted that some of the same justices who regularly use democracy talk in some arenas are conspicuously unwilling to preclude state-level practices that undermine meaningful representative government, limit minority voice, or make voting more difficult in targeted ways.”).
[23] Serratto et al v. Town of Mount Pleasant, 55442/2024, Decision and Order at 2 (Westchester Cnty. Supreme Ct., Apr. 14, 2025), NYSCEF 183 (“Serratto Order”).
[24] Clarke v. Town of Newburgh, 226 N.Y.S.3d 310, 323 (App. Div. 2025).
[25] N.Y. Elec. Law § 17-206(8) (“Coalition claims permitted. Members of different protected classes may file an action jointly pursuant to this title in the event that they demonstrate that the combined voting preferences of the multiple protected classes are polarized against the rest of the electorate.”)
[26] See Serratto Order at 2; Clarke, 226 N.Y.S.3d at 323.
[27] N.Y. Elec. Law § 17-206(2)(b)(ii)(A)-(B) (stating that vote dilution may be established by evidence of “(A) voting patterns of members of the protected class within the political subdivision are racially polarized; or (B) under the totality of the circumstances, the ability of members of the protected class to elect candidates of their choice or influence the outcome of elections is impaired”) (emphasis added).
[28] See Serratto et al v. Town of Mount Pleasant, 55442/2024, Plaintiffs’ Memorandum of Law in Support of their Motion for Summary Judgment at 13-29 (Aug. 13, 2024), NYSCEF 60; Clarke et al v. Town of Newburgh, 002460-2024, Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment at 4-8 (Oct. 10, 2024) (“Clarke Plaintiffs Opposition Motion”), NYSCEF 73.
[29] Serratto et al v. Town of Mount Pleasant, 55442/2024, Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment at 3-10 (Aug. 13, 2024), NYSCEF 118.
[30] Id.
[31] Id.
[32] Clarke et al v. Town of Newburgh, 002460-2024, Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment at 7-21 (Sep. 25, 2024) (“Newburgh Summary Judgment Motion”), NYSCEF 70.
[33] 600 U.S. 181, 201 (2023).
[34] Town of Newburgh Summary Judgment Motion at 7.
[35] Clarke Plaintiffs Opposition Motion at 2.
[36] Newburgh Summary Judgment Motion at 17.
[37] Id. As the plaintiffs pointed, this argument could not logically be cabined to the voting rights context—it would, at a minimum, invalidate all antidiscrimination statutes that allowed the imposition of liability on a disparate impact theory. See Clarke Plaintiffs Opposition Motion at 13.
[38] Clarke et al v. Town of Newburgh, 002460-2024, Decision and Order (Nov. 8, 2024), NYSCEF 147.
[39] Clarke, 226 N.Y.S.3d at 325.
[40] Id. at 318.
[41] Id. at 327-28.
[42] Id. at 325.
[43] Id. at 329.
[44] Id. at 330.
[45] Id. at 315.
[46] Id. at 330.
[47] Serrato Order at 4.
[48] Serrato Order at 6
[49] No. 611872/2023, 2024 WL 5063929, at *12 (N.Y. Sup. Ct. Dec. 6, 2024) (“Defendants do not point to any language in the NYVRA that supports their contention that a political subdivision using a district-based method of election must draw districts that group voters together based solely (or predominantly) upon their race, which is required to trigger strict scrutiny.”).
[50] Clarke et al v. Town of Newburgh, 2024-11753 (App. Div., Second Dep’t), Notice of Motion (Feb. 18, 2025), NYSCEF 37.
[51] Serratto Order at 4 n.1, 8-9.
[52] See County of Orange & Orange County Board of Elections v. James, No. 50065/2025 (Westchester Cty. Supreme Court).
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