A three part series

Part 2 of Failing to certify election results may disproportionately target voters of color and violate the Voting Rights Act

 

Recent threats and unjust refusals to certify election results may violate Section 2 of the Voting Rights Act (VRA). Analysis of cases in Arizona and Michigan lay out how derogatory comments about Black and Latino voters and spurious reasons to deny certification could be found to be discriminatory and thus make certification denials a violation of the Voting Rights Act in those states.

Part 2 of our series hones in on the discriminatory effects of some of the recent threats and unjust refusals to certify election results, and analyzes whether they may violate Section 2 of the Voting Rights Act (VRA). Whether or not this occurred after the 2024 presidential election, the threat was there and had an impact on American democracy. VRA Section 2 claims are difficult to prove, but they also provide an important perspective in our nation’s multiracial democracy. Proving violations of this “permanent, nationwide ban on racial discrimination in voting” would require review of the totality of circumstances to evaluate whether the threats resulted in discrimination. As will be shown below, in Arizona, where nearly 25% of eligible voters are Latino, and in Michigan, where efforts to deny certification specifically targeted Wayne County and the majority-Black city of Detroit, efforts to deny certification would have diluted the votes of Black and Latino voters. Under Section 2, “the totality of circumstances” in each state, including derogatory comments about Black and Latino voters and spurious reasons to deny certification, could be found to be discriminatory and thus make certification denials a violation of the Voting Rights Act in those states.

The VRA’s statutory language defines the right to vote to include the right to have one’s ballot counted equally, and like Section 11(a), Section 2 also clearly applies to certification issues. Justice Thurgood Marshall once stated that Section 2 was enacted in 1982 to help ensure that “‘the right to have one’s vote counted’ is of the same importance as ‘the right to put a ballot in a box.’” (Emphasis added.) It includes the following legislative language:

“A violation of…Section 2… is established if based on the totality of circumstances, it is shown that the political processes leading to nomination or election… are not equally open to participation by members of a class of citizens protected [voters of color]… in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice[.]”

Key points about Section 2 include that it can apply to individual actions and  discriminatory intent is not required. The key question in determining violations is whether the challenged practice–refusal to certify or threatening to do so–denies voters of color an equal opportunity to elect candidates of their choice. 

There is clear precedent that a refusal to certify may violate Section 2 if it is discriminatory. In two cases where local election officials in Mississippi (in 1985) and Missouri (in 1987) used excuses to exclude ballots cast by predominantly Black voters, federal courts held that refusal to include all votes in certification violated Section 2. More general Section 2 case law is also helpful. In 1986, in the case of Thornburg v. Gingles, the Supreme Court held that there is no need to prove intentional discrimination under Section 2; however, intentional discrimination in elections is still illegal, and in League of Latin American Citizens v. Perry, the Court held that a redistricting scheme that effectively diluted the impact of the Latino vote undertaken in the wake of the rising potential for Latinos to elect candidates of their choice “bears the mark of intentional discrimination.” Under these precedents, officials who refuse to certify election results of an emerging new majority or increasing potential political power of voters of color may be in violation of Section 2. 

More recent rulings also apply. In 2023, in the case of Allen v. Milligan, striking down a discriminatory redistricting scheme in Alabama, Chief Justice Roberts restated that Section 2 must be understood in the context of its “broad language,” and that regardless of the specific practice or structure in question: 

“[The essence of a §2 claim… is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters… to elect their preferred representatives.” (Emphasis added.)

  • As will be shown below, this may be the case in Michigan, where two Wayne County election officials previously voted against certification in a manner that interacted with conditions such as high levels of racial segregation that would have resulted in diminished opportunity for Black voters to elect candidates of their choice.
  • If federal courts found a violation of Section 2, they would enjoin–legally prohibit– the practice that resulted in discriminatory refusals to certify the vote. As will be discussed further below, the John Lewis Voting Rights Advancement Act is needed to shore up the ability for impacted voters and their advocates to utilize Section 2 to stop any discriminatory practices prior to their implementation.

The totality of circumstances analyzed in Section 2 cases may include disparate impacts, any racial appeal campaigns or rhetoric arising from election officials or other candidates or officials within the state, historic discrimination in voting, historic segregation and ongoing socioeconomic disparities, and/or the “tenuousness” of the relation of the government interest or stated motive (election security) and the measures taken (refusal to certify).

The totality of circumstances in Arizona

Arizona has a long history of discrimination against Latino and Native American voters, and as documented in Election Certification Under Threat, the recent threats to discount their votes are not justified. Threats to refuse to certify election results have arisen in Cochise and Mohave counties, with some officials in these counties calling into question the results in Maricopa County and statewide. 

Arizona is a state with rapidly growing Latino political power along with a significant number of Native American voters. Nearly 25 percent (24.6%) of citizens of voting age in Arizona are Latino. The collective impact of voters of color and multiracial voters result in the White voters in Arizona representing over four points less than the national average (62.2 v. 66.5%). Arizona is also a place where changing demographics mean that Latinos are confronting discrimination by organizing citizens to elect candidates of their choice, especially in Maricopa County, where resistance to former Sheriff Joe Arpaio’s racial profiling policies prompted Latinos to organize to elect distinct state-wide and local officials. Latinos comprise 23.6 percent of eligible voters in Maricopa, which is slightly lower than the state average but higher than in some other counties. In these circumstances, backlash threatening to dilute their voting power may be a consideration under the Voting Rights Act. 

Two Cochise county election officials illegally delayed certification of their county’s election results in 2022, and the results were only certified after the Secretary of State and an advocacy group filed for and won state legal actions. One of these officials, Peggy Judd, recently pled guilty to felony misdemeanor charges for her failure or refusal to perform her duty and knowingly refusing to perform her duty to certify the county’s election results by the state law deadline.

The demographics of Cochise County demonstrate that if certification did not proceed in 2022, the value of the Latino communities’ votes would have been diluted. Cochise is close to the Southern border as well as New Mexico. Nearly one-third (29.7%) of Cochise County’s citizens of voting age are Latino. Their potential political power in combination with Native Americans and other voters of color means that White citizens represent only 60.9 percent of Cochise County’s electorate. When county officials threaten to refuse to certify, this threatens to dilute the state-wide collective impact of voters of color.

Mohave is another Arizona county where rogue election officials improperly delayed certification and but for pressure from the Arizona Republican Party, they would have blocked certification in 2020. In 2022, Travis Lingenfelter voted to delay certification as a political statement to Maricopa County [election] officials and the Arizona legislature. White voters represent over 80 percent (80.8%) of the electorate in Mohave County, a higher percentage than Arizona’s state-wide demographics, and Latinos represent 13.5 percent of the electorate, a statistically smaller percentage than Arizona’s state-wide demographics. At first blush it might seem like an official’s refusal to certify in Mohave County would not discriminate against voters of color. However, if election officials in this majority-White county would have refused to certify the 2024 presidential election results, they could have held the statewide certification process hostage, potentially imperiling the December 11th electoral count certification deadline. In that circumstance Arizona, with its high percent of Latino voters, would be disenfranchised, threatening the equal opportunity of Latinos to participate in American democracy. 

The totality of circumstances that federal courts consider in Section 2 cases include whether political or advocacy “campaigns have been characterized by overt or subtle racial appeals.” Campaigns have repeatedly used racial appeals in Arizona, where anti-immigrant sentiment has been driven in part by white supremacy and directed at Latino communities as a whole. The Census data summarized above shows that their numbers include many thousands of eligible voters who are simply exercising their right to vote for candidates of their choice. 

State Senator Jake Hoffman, who was indicted in Arizona for his role in the 2020 fake elector scheme, recently retweeted three posts unfairly portraying immigrants as a widespread violent threat. Another State Senator, Anthony Kern, was present at the attack on the U.S. Capitol and was also indicted in Arizona for his role as a fake elector in the 2020 election. His tweets include numerous false claims about noncitizens voting. Recently, Kern has posted content related to false claims about Haitian immigrants eating pets in Springfield, Ohio:

  • On September 27th, Kern tweeted “Too many kittens makes one very thirsty…” with a video of a Haitian representative to the United Nations drinking from a pitcher of water during his speech.
  • On September 24th, Kern tweeted “Vote Republican. Remove illegals!” with a photo of cats wearing hats that read “MAKE CATS SAFE AGAIN.”
  • On September 11, he tweeted “Vote Republican!” with a Gadsden flag-style drawing of a cat that reads ‘DON’T SNACK ON ME.’”

The state Republican Party has also amplified baseless claims that spread online about Haitian immigrants eating pets with a billboard campaign reading “Eat Less Kittens Vote Republican!” In a news release, the Arizona GOP called the billboards “a humorous, but sobering reminder of the stakes involved in the fight for secure borders and safe communities.” There are some, but not many, Haitian immigrants in Arizona, but the billboards generalize anti-Haitian xenophobia to all immigrant communities in the state, the great majority of whom are Latino.

Section 2 would also take into account “whether the policy underlying the State’s or the political subdivision’s use of the contested practice or structure is tenuous,” or not closely related to a policy that the officials were charged with implementing. In the 2022 general election, Cochise County election official Peggy Judd voted for a motion to table the vote on certification because of purported concerns about the state’s voting machines. She later claimed that her true intent was to protest election administration in Maricopa County, despite there being no credible evidence of widespread fraud or irregularities in the election in Maricopa. After the 2020 general election, another Cochise County election official, Ron Gould, voted to delay certifying the election results, amid pressure from the Arizona Republican Party, and after the 2022 general election, he voted to delay certifying the election results and said: “It is purely a political statement” against Maricopa County. If Maricopa were not certified it would dilute the Latino vote state-wide, and if Arizona were not certified it would have the effect of diluting the Latino vote nationally. But for a judge ordering them to certify the 2022 midterm results, the opportunity to participate in American democracy as equals and elect candidates of their choice would have been diluted for voters of color in that election.

The totality of circumstances in Michigan

Black and Latino communities in Michigan experience high levels of socioeconomic disparities, and the state’s history of discrimination includes segregation, prior discrimination in voting and failure of basic services such as potable drinking water in majority-Black townships. Although the state’s electorate is 78.3% White (well over the national average of 66.5%), Section 2 would arguably apply to rogue election officials threatening to withhold certification in Wayne County. In this county, which is home to Detroit, Black voters make up 38.3% of the electorate, nearly three times the state average (13.2%). And while White voters are a supermajority of the state-wide electorate, in Wayne County, their ratio drops by 25 points, from 78.3 to 52.3 percent. 

The totality of circumstances that would be reviewed in a Section 2 claim include that in November 2020, Wayne County officials voted against certifying the presidential election results in their county over baseless claims of voter fraud. As CREW reported earlier this year: “In response to the Wayne County incident, Michigan voters amended their constitution in 2022 to make clear that county officials have a ‘ministerial, clerical, nondiscretionary duty…to certify election results based solely on…statements of returns from the precincts and absent voter counting boards in the county and any corrected returns.’” 

It was only after intense public pressure that the two Wayne County officials who had voted against certification and created a 2-2 deadlock vote changed their mind and decided to vote for certification on November 17, 2020. They later tried to rescind their certification votes, but the state’s 14-day legal deadline to certify had already passed. The two County Board of Canvassers who initially refused to certify were White, and the other two members were Black.

Whether or not their actions were intentionally discriminatory, the impact would have been to dilute the power of voters of color in comparison to White voters in the state in 2020. CBS News reported that: “Prior to the second vote [to certify], Monica Palmer, the Republican chair of the [Wayne County elections] canvassing board, suggested she would have certified results if Detroit were excluded.” This drew sharp criticism.

 Rev. Wendell Anthony of the Detroit branch of the NAACP, told the Associated Press: 

You have extracted a Black city out of a county and said the only ones that are at fault is the city of Detroit, where 80% of the people who reside here are African Americans. Shame on you!

The November 17, 2020 Wayne County Board of Canvassers meeting also included many public comments alleging and explaining how racial appeals and targeting may have impacted the initial refusal to certify:

  • (02:58:43) Ryan Bates, director of Michigan United, said “And from the more than 300 monitors that we deployed, there was not a single instance of fraud or any sort of inconsistency with ballot counting. What we did see was a concerted effort by Republican vote challengers to disenfranchise African-American and Latino voters. Republican challengers unlawfully asking Latino voters waiting in the voting line for ID. Republican challengers at times challenging every single vote coming across the counting table at the TCF Center, not with any sort of valid complaint, not in good faith, always frivolous, always with the intent of disenfranchising the people of Detroit who are primarily, as we know, African-American and Latino. The scandal here is that that attempt to disenfranchise African-Americans in Detroit is continuing today with the refusal of this board to certify a free and fair election.”
  • (03:14:09) Ned Stabler said “You talked about not certifying Detroit, even though you acknowledge that Livonia, a city, by the way, I know you know is 95% white, had bigger variances than Detroit, which is 80% black.”
  • (03:24:53) Blase Kearney, lawyer, poll watcher and resident of Hamtramck, said “I saw challengers engaging in racist behavior harassing poll challengers who were wearing hijabs.”
  • (04:17:12) Denzel McCampbell, Detroit Charter Revision Commissioner, said “It’s interesting that..they have the GOP members of this board vote against certifying. And then once we call out, the chairperson says that she is open to certifying every community except for Detroit. As folks have already said, this reeks of racism and partisan games[.].”
  • (04:22:58) Suril Patel, ballot counter on election day, said “[t]hey had passed out little scripts that I saw them doing to challenge every single military vote. I even heard a group of GOP challengers saying we need to get into the heavily black precincts.”

Based on the above, Wayne County election officials would have singled out Detroit (majority Black) and Hamtramck (majority Arab American) precincts in their county while treating similarly situated voters in majority White precincts very differently. As discussed in part 1 of this series, the latest decennial Census showed that 73.6 percent of Black people living in Wayne County live in Detroit, the remainder of the county is majority White, and targeting Detroit results in significant racial disparities.

This type of targeted refusal to certify would parallel the Mississippi and Missouri cases discussed above, against county officials during the 1980s who included votes from majority-White areas and excluded votes from majority-Black areas–federal courts found that this fact pattern violated Section 2. Further, Wayne County has a higher proportion of Asian American voters (2.5%) compared to the state (2.1%), so diluting the votes of Wayne County would also dilute the power of Asian American voters in the state.

Although the 2020 certification was resolved, a statewide climate of racial appeals in Michigan persisted. Days after the 2021 inauguration, Alpena County election official Darlene Alexander wrote on social media, “The swamp utilized swing state ghetto’s”[sic] to “facilitate the fraudulent Biden votes.” Meshawn Maddock is a 2024 Republican elector in the 7th Congressional District. She was a fake elector in 2020 and is currently under indictment for knowingly signing and submitting forged Electoral College certificates in violation of state law, and this year, she has posted false allegations of migrants voting. In January of 2024, Elector Maddock had tweeted a post with a photo of her state’s Black Lt. Governor, calling him a “scary masked man” who would make “babies… cry.”

There are indications of social conditions of discrimination elsewhere this year in Michigan. For example, Judge Kathleen Ryan in suburban Detroit was suspended after a recording of her came out saying, among other things: “I’m a new racist;” and “If you’re a Black from any other country, you’re doing way better. If you’re an American Black, then you are a f***ing lazy piece of sh**.” State Rep. Josh Schriver was stripped of staff and committee assignments for tweeting about the eugenics-based “great replacement” conspiracy theory, and the Michigan GOP characterized an MSNBC interview as “Another shining example of ‘colored communism’ in America” in a since-deleted tweet.

It is this broad racially charged climate in Michigan that raises the prospect that a refusal to certify in that state might violate the Voting Rights Act. According to the Supreme Court: “The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” The Michigan officials threatening to refuse to certify the votes from majority Black districts in Wayne County likely intersects with social and historical conditions of ongoing discrimination in Michigan, including racial appeals, resulting in inequality of opportunities for voters of color to elect candidates of their choice.

Why voters need the John Lewis Voting Rights Advancement Act to shore up Section 2

In addition to the complexity of proving a totality of circumstances, it has become increasingly difficult to get a preliminary injunction to protect voters against potentially discriminatory voting or election practices–including those that are later found to violate Section 2. For example, intentionally racially discriminatory cuts to early voting and strict voter ID measures in North Carolina and Texas could not be preliminarily enjoined and so they were implemented in several elections, prior to federal courts finding they violated Section 2 and striking them down years later. A preliminary injunction would put potentially discriminatory certification procedures or practices on hold until they could be fully reviewed by a federal court. Moreover, due to recent Supreme Court decisions that bizarrely make it difficult to do so, Congress needs to strengthen the ability to block potentially discriminatory practices that arise close to Election Day. In response to these dilemmas, the John Lewis Voting Rights Advancement Act (JLVRAA) would protect multiracial democracy by restoring the ability for impacted voters or the Department of Justice to get a preliminary injunction under Section 2, especially for actions occurring less than 180 days before an election.

The JLVRAA would also shore up the ability for voters to access this relief. A private right of action–meaning that an impacted individual or community group–is found in the statute and successful Section 2 private enforcement actions have always far surpassed the number of DOJ cases. Despite this, the 8th Circuit Court of Appeals recently opined that there is no private right of action to enforce Section 2, while the conservative 5th Circuit upheld it. This set up a “circuit split” that may go up to the Supreme Court, and voters and their advocates are understandably worried about how the Supreme Court would rule. Moreover, voters living in the 8th Circuit are at risk as they no longer have a way to enforce Section 2, and DOJ cannot cover all the cases that may arise in their states (Arkansas, Iowa, Missouri, Minnesota, Nebraska, and North and South Dakota). To address this, the JLVRAA would legislate a clear private right of action. 

Perhaps most importantly, the John Lewis Voting Rights Advancement Act would restore VRA Section 5 preclearance review of changes in election practices and procedures in states with ongoing histories of discrimination, including Georgia, which has become the epicenter of radical misuse of the duty of county officials to certify the election results and include every voter on an equal basis. The upcoming Part 3 of this series will analyze how Section 5 would have minimized the damages to multiracial democracy in Georgia and elsewhere, and why Congress must pass the reforms needed to restore preclearance. State Voting Rights Acts  (like those in California, Connecticut, Minnesota, New York, Oregon and Virginia, OR and VA) would also be extremely helpful to stop potentially discriminatory vote dilution practices before they are test-driven during elections.

 

Lama Elsharif, Meghan Faulkner, Alex Goldstein, Sacha Heymann, Rebecca Jacobs, Alyssa Meiman, Caitlin Moniz, Debra Perlin, Nikhel Sus and Esther Eriksson von Allmen contributed to this piece.

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