If You Want Something Done, Do It Yourself – New York Passes Landmark State Voting Rights Protections
February 24, 2023
By Haley Rosenspire
In the wake of Supreme Court cases like Shelby v. Holder striking down key provisions of the 1965 Voting Rights Act, Alabama Representative Terri A. Sewell introduced the John R. Lewis Voting Rights Advancement Act in August 2021. The Act, which has passed the House several times but has never had the votes to pass the Senate, would establish new criteria for determining which states and precincts must obtain Section 5 “preclearance” prior to changes to voting practices taking effect. Preclearance is the process of predetermined states and precincts being required to receive pre-approval from the Department of Justice before making legal changes that would impact voters’ rights, a mechanism which became necessary during the Civil Rights Movement to ensure that Black citizens were able exercise their voting rights.
Despite, or possibly because of, the bill’s failure to clear the Senate, the State of New York took matters into its own hands in June of 2022 by passing its own “John R. Lewis Voting Rights Act of New York.” While the laws share a name, they do differ in some substantial ways. While the federal John R. Lewis Voting Rights Advancement Act focuses more on updating key provisions to the 1965 law, the New York Act brings that vision to the state level by launching its own preclearance program, providing new legal tools to fight discriminatory voting practices, creating protections against voter intimidation or obstruction, and providing specific assistance in elections to language-minority groups.
The Act, which bears the name of Civil Rights giant and former congressman John Lewis was signed into law by Governor Hochul at Medgar Evers College in Brooklyn on June 20, 2022. It makes its legislative and public policy purpose clear in its first section, stating:
In recognition of the protections for the right to vote provided by the constitution of the state of New York […] it is the public policy of the state of New York to:
1. Encourage participation in the elective franchise by all eligible voters to the maximum extent; and
2. Ensure that eligible voters who are members of racial, color, and language-minority groups shall have an equal opportunity to participate in the political processes of the state of New York, and especially to exercise the elective franchise. N.Y. Elec. Law § 17-200 (McKinney)
The second section of the Act further proscribes that “the authority to prescribe or maintain voting or elections policies and practices cannot be so exercised as to unnecessarily deny or abridge the right to vote.” N.Y. Elec. Law § 17-202.
These lofty legislative and policy goals are animated by a new, robust preclearance law that regulates the following: methods of election, the annexation of political subdivisions, the consolidation or division of political subdivisions, the removal of voters from enrollment lists, the dates of elections or the election calendar, the registration of voters, the assignment of election districts, the assistance offered to members of a language-minority group, as well as any other topics designated by the civil rights bureau. N.Y. Elec. Law § 17-210. The law also includes explicit prohibition against voter intimidation and obstruction, as well as expedited pretrial and trial proceedings for actions brought pursuant to the Act.
With next term’s Merrill v. Milligan poised to challenge even more of the substantiative law of the Voting Rights Act of 1965 and federal voting rights legislation dead in the water with the current composition of the Senate, New York is not the only state that has moved to shore up voting rights at the state level. The Brennan Center for Justice reports that in 2022, Arizona, Connecticut, and Oregon have also enacted laws that “expand access to the vote,” and another “48 bills with expansive provisions are moving through 16 state legislatures”. Other states yet move to impose more restrictive voting regulations— though still intended to protect democratic processes— particularly those aimed at combatting voter interference. Despite the type of regulations imposed, the trend continues to point to robust debate and activity for election law at the state level—the Empire State, as per usual, leading the crusade.