Nassau County voting map lawsuit tests New York voting rights act : NPR

NASSAU COUNTY, N.Y. — In 2020, Maria Jordan-Awalom marched across an invisible line in one of the most segregated regions of the country.

After the police murder of George Floyd, she and other demonstrators took to the streets for racial justice in this New York City suburb, just east of the borough of Queens on Long Island.

There were no barricades blocking the road into the next community over, but crossing from the predominantly Latino and Black village of Freeport into the predominantly white hamlet of Merrick, their peaceful protest was met with jeers.

“Go back to where you came from!” Jordan-Awalom remembers hearing from onlookers on the sidewalk.

“It hits different when you’re an immigrant, obviously,” says the president of Freeport’s school board, who was born in El Salvador and first moved to this village on Long Island’s south shore as a teenager. “But also knowing that [they] were just angry because we were Black and brown people, that’s what hurt more. We’re neighbors.”

Almost four years later, neighbors from the two communities are sharing the same representative in county government. That’s because, in early 2023, officials in the Republican-controlled Nassau County Legislature approved a redistricting plan that drew large swaths of Freeport and Merrick into the same voting district.

The new political map has left Jordan-Awalom wondering: “What similarities do we have with the community who is telling us, ‘Go back to where you came from’?”

The law firm that created the map with the county’s then-top Republican legislator pointed to the communities’ fire departments providing emergency backup services for each other, plus a shared rail line and an “economic corridor” running along the same road where Jordan-Awalom marched.

Still, the map has perplexed many residents of color. In a county scarred by decades of housing discrimination, they say its voting districts split up their communities and ignore many of the lines that separate them from predominantly white areas.

A group of them, including Jordan-Awalom, and an organization called New York Communities for Change are now waging a legal battle against the map with stakes that go beyond the shores of Long Island.

On Wednesday, they filed a novel lawsuit, arguing that the Nassau County Legislature intentionally passed a redistricting plan that discriminates against Black, Latino and Asian American voters in order to give Republican candidates an advantage in elections. Their case could not only result in a different set of voting districts for a county of close to 1.4 million residents, but also create a pathway for voters of color elsewhere to lead a new kind of fight against racial discrimination in redistricting at the local level.

In Nassau County, voters of color and white voters tend to prefer different candidates. And the number of people identifying as white and not Hispanic has dropped more than 11% over the past decade, as Black, Latino and Asian American residents now make up more than a third of eligible voters. But on the current map for the county legislature, those voters of color make up the majority of eligible voters in only four out of 19 districts, or less than a quarter. The map’s challengers argue there should be six such districts.

“The white voice always seems to overpower our voices. And I feel like if we’re not represented as whole, the representative will go to that powerful white voice before they listen to our concerns,” says Jordan-Awalom, who wants to keep her village united in one voting district. “We have had the same fight for so long, so obviously we’re not being heard. And I think it has to change.”

That change, she hopes, will come through an unprecedented way of directly challenging a local voting map under a state voting rights act — an emerging tool that advocates hope can help fortify the rights of voters of color as opponents continue to chip away at protections against racial discrimination under the federal Voting Rights Act of 1965.

Legal experts, however, warn that critics of state voting rights acts are eager to test the constitutionality of these state laws with the U.S. Supreme Court’s conservative supermajority, and this New York case could spark an appeal that may ultimately lead to the undoing of these protections across the United States.

How New York’s state voting rights act led to a new kind of redistricting lawsuit

In the decade since the U.S. Supreme Court struck down a key provision of the federal Voting Rights Act, a small but growing number of states — including Washington, Oregon, Virginia, New York and Connecticut — have followed the lead of the California Voting Rights Act of 2002 by putting in place additional legal protections against racial discrimination in voting. New York’s John R. Lewis Voting Rights Act was signed into law in 2022.

The scope of each law is different, including how they apply to specific elections. While there have been many redistricting lawsuits under state voting rights acts over the past two decades, those cases have been challenges to elections in which multiple candidates are elected as at-large representatives of one voting district.

New York’s state voting rights act is among those that allow a map of multiple voting districts, each with a single representative, to be challenged in court for diluting the collective power of voters of color. And the lawsuit against the Nassau County Legislature’s map is breaking new legal ground in state courts, according to Ruth Greenwood, an expert on state voting rights acts, who directs Harvard Law School’s Election Law Clinic.

“A lot of lawyers like to think that the U.S. Supreme Court is as fancy as it gets and you should try to do everything you can there,” Greenwood says. “But the reality is that if you’re trying to protect communities, you need to use the absolute best tools available to them. And in this case, the U.S. Supreme Court is not a friend to the Voting Rights Act. And so it makes sense to go through state voting rights acts.”

To argue that a voting map dilutes the collective power of voters of color under the federal Voting Rights Act, challengers have to show in court that, in the words of a landmark Supreme Court ruling, “the minority group” can make up the majority of and fit inside a “majority-minority district” — a hurdle that can take a lot of time and redistricting experts to overcome. That’s not the case with these state voting rights acts.

That difference allows these state laws to address racial discrimination in places where residential segregation may not be as extreme, says Perry Grossman, who helped develop New York’s state voting rights act and is now the lead attorney for the Nassau County map’s challengers.

“It’s taking less taxpayer resources and less resources on the side of voters of color to root out that discrimination,” says Grossman, who also directs the New York Civil Liberties Union’s Voting Rights Project. “It also offers more opportunities for jurisdictions to remediate their schemes voluntarily, which we want to see. We want to see jurisdictions take that opportunity to do it themselves rather than get sued for it.”

The challengers of Nassau County’s map tried to avoid a lawsuit by sending a formal letter in December to county officials, as required by New York’s state voting rights act. The letter claimed the current redistricting plan is not in line with the state law because its boundaries impaired the ability of communities of color to elect their candidates of choice and influence election outcomes.

But the county legislature has refused to make any changes, keeping in place a map that was introduced late in the redistricting process by the top Republican legislator at the time, Richard Nicolello, who rejected plans put forth by a bipartisan redistricting advisory commission.

The legislature passed that map in February 2023 on a party-line vote with 11 Republicans in favor and seven Democrats against it. The vote came after contentious public hearings, where Democratic county legislators had a hard time getting Nicolello and an attorney from Troutman Pepper, the Atlanta-based law firm that put together Nicolello’s map, to elaborate on how they came up with the districts.

No districts in Nassau County needed to or could be “race-focused districts” in order to be in line with the federal Voting Rights Act, concluded Sean Trende, an elections analyst for RealClearPolitics who advised Nicolello, according to a memo released by Troutman Pepper.

“We, therefore, did not consider race any further in redistricting because that would have been unconstitutional,” attorney Misha Tseytlin, a partner at Troutman Pepper who previously served as Wisconsin’s solicitor general, explained at one hearing.

Tseytlin later added that the firm thought it is important to read New York’s John R. Lewis Voting Rights Act “consistent with the U.S. Supreme Court’s precedent against racial gerrymandering.”

“Any other conclusion that would read the John Lewis law as a requirement for infusing race into every redistricting decision, in the U.S. Supreme Court’s interpretation of words, would render the John Lewis law unconstitutional, and we definitely don’t want to do that,” Tseytlin said.

Tseytlin, Trende and the legislature’s Republican majority caucus, through a spokesperson, declined NPR’s interview requests. But in an email statement, Mary Studdert, the caucus’ spokesperson, said: “The adopted maps incorporated feedback from the public’s testimony from over a dozen public hearings, while meeting all legal and constitutional standards, uniting communities of interest and ensuring equal representation for the residents of Nassau County.”

“…they put that lid right back on top of us”

Lisa Ortiz, an Afro-Latina resident of southern Nassau County, however, is concerned that representation is not equal now that her home in the predominantly Black hamlet of Lakeview has been drawn into the same district as the predominantly white village of Malverne.

The change forced Lakeview out of a district with neighboring communities of color, and Ortiz, a registered Democrat who was previously represented by a Black Democrat, now has a county legislator who is a white Republican.

“When you think about Lakeview being grouped into a district that really has the power to silence our vote, it discourages people. Why should I go out and vote? My vote is not even going to count. That defeats the purpose of living in a democracy,” says Ortiz, who is one of the redistricting plan’s challengers in the lawsuit.

Troutman Pepper, the law firm that drew the county legislature’s map, justified the change by citing the “strong community of interest” created by the two communities sharing the same school district.

But many Lakeview residents remember the struggle to get the district to fund school bussing for Black students in Lakeview after the district was ordered to desegregate. And until last year, the street in front of one of the district’s elementary schools in Malverne was named after a leader of the Ku Klux Klan in New York, Paul Lindner, who was once also the namesake of the school.

Ortiz was relieved to see Lindner Place become Acorn Way at the unveiling of the new street sign last January, weeks before the Nassau County Legislature passed the new voting map.

“We were able to accomplish one thing with the street renaming, but then they put that lid right back on top of us,” Ortiz says.

Why this redistricting fight could end up before the U.S. Supreme Court

Towards the northwest corner of Nassau County, Jerry Vattamala, an Indian American resident of the village of New Hyde Park, sees a similar tactic playing out through the current redistricting plan. The county’s Asian American population has grown over the past decade by around 60%, the highest rate among all racial and ethnic groups.

The map’s lines cut through a growing Asian American community in an area known as Greater New Hyde Park, where thoroughfares are lined with gurdwaras, Hindu temples, bubble tea shops and Asian-owned grocery stores, plus annual events for Diwali and Lunar New Year are organized by town government officials.

“Anyone that lives in the area just by looking at it can see, ‘Oh, look! They divided us into three different districts’ — right in the heart of where most of the people live,” says Vattamala, who is a member of New York Communities for Change, one of the map’s challengers.

Because of where Asian American residents live in the county, it may be difficult to draw a viable voting district where Asian Americans make up the majority.

But Vattamala hopes to see a new map with what’s known in the redistricting world as an “influence district,” where there would be enough Asian American voters to have a significant influence on who is elected to the Nassau County Legislature, which has yet to have an elected legislator of Asian descent. Under the current map, two Democratic candidates who could have been the county’s first Asian American legislators lost to Republicans last year in races for seats in Greater New Hyde Park.

“We’re not asking for special treatment or to have any type of advantage,” says Vattamala, an attorney who leads the Asian American Legal Defense and Education Fund’s Democracy Program. “What we’re demanding is an equal opportunity to elect a candidate of our choice, just like other communities enjoy, mainly the white community in Nassau County.”

Still, Greenwood of Harvard’s Election Law Clinic warns that critics of state voting rights may be preparing to challenge that position in court by arguing that what laws such as New York’s require in redistricting amounts to racial gerrymandering.

“I think some people see that when you’re trying to enfranchise people of color, they see that as creating maybe a quota or some set-aside so that people of color have access to the political system,” Greenwood says.

Greenwood has helped file friend-of-the-court briefs arguing against a Republican precinct committee officer in Washington’s Franklin County who has asked the U.S. Supreme Court to take up a case about the constitutionality of Washington’s state voting rights act.

The case against the Nassau County Legislature’s map may be headed for the high court, too.

“If this leads to the New York voting rights act getting struck down as unconstitutional, that won’t only affect people in Nassau County,” Greenwood says. “It’ll affect everybody in New York and potentially everybody in all of the states that have state voting rights acts.”

It’s a possible scenario that Tseytlin, the Troutman Pepper attorney, hinted at multiple times last year during a public hearing about the county’s map.

“This was just enacted,” Tseytlin said about the John R. Lewis Voting Rights Act of New York. “This is the first cycle. Perhaps, there will be a test case here coming up.”

Edited by Benjamin Swasey

Visuals edited by Grace Widyatmadja

Research by Jane Gilvin, Nicolette Khan and Barclay Walsh