New York, which has a recent history of poor election rules, is taking a major step forward to expand voting rights with the forthcoming enactment of a statute that has passed the legislature and Democratic Governor Kathy Hochul has indicated she will sign. It’s worth taking a close look at this new law to understand how and why it protects New Yorkers’ right to vote, especially as the U.S. Congress has been unable to pass meaningful voting rights reform.
The John R. Lewis Voting Rights Act of New York accomplishes much of what Congress has set out but failed to do. Even the title of the bill—named after the late civil rights icon—demonstrates the powerful message of this new state law.
The bill begins with a statement of legislative purpose, elevating the importance of the fundamental right to vote to our democracy. The language notes that the protection for the right to vote within the state constitution “substantially exceeds” that conferred under the U.S. Constitution, allowing the state legislature to promulgate robust voting rules. The bill also declares that New York seeks to “encourage participation in the elective franchise by all eligible voters to the maximum extent” and particularly to ensure that racial minorities and language-minority groups enjoy equal access to the ballot. These prefatory statements are not mere boilerplate. They are important because they set the tone for state election law, making it clear that the scale is tipped on the side of the voter.
The legal rules the bill promulgates will help to achieve these goals. For instance, the statute provides that courts must construe all election laws “liberally” in favor of the voter and employ the highest form of judicial review to any burdens on the right to vote. Government actors must demonstrate that election laws are “narrowly tailored to promote a compelling policy justification that must be supported by substantial evidence.” This means that state or local governments must have an extremely strong reason for making voting harder. That legal standard is a far cry from current jurisprudence at the U.S. Supreme Court, which unduly defers to state legislatures and barely requires states to offer any rationale for their voting rules. Federal court rulings have made it virtually impossible for voting rights plaintiffs to prevail. Imposing this stronger “strict scrutiny” standard for voting restrictions will help voting rights litigants in New York ensure that the state is not unfairly abridging our most fundamental right.
The law puts these ideals into action through broad protections for racial and language-minority groups. Jurisdictions that include communities of language minorities will now have additional, meaningful obligations, and those jurisdictions must offer language assistance to voters, including multilingual voter registration materials and ballots. The federal Voting Rights Act already mandates some language assistance if the population of certain language minorities is high enough; this new state law expands that protection even further to encompass more language-minority groups and more places.
Perhaps most significantly, the bill imposes a “pre-clearance” regime on political subdivisions with a history of discrimination. Those jurisdictions must submit voting changes to the state attorney general or a state court to prove that the new election rules do not harm minority voters. This is the same process written into the federal 1965 Voting Rights Act, which the Supreme Court struck down in its 2013 Shelby County v. Holder decision. New York will become the first state to reinstitute pre-clearance for its own jurisdictions.
New York’s Voting Rights Act also prohibits vote dilution or the practice of imposing rules that devalue the strength of minority voters. Specific mechanisms in the law will help voters wage legal challenges to jurisdictions that enact harmful election practices, such as drawing district lines to make it harder for minorities to elect their preferred candidates. The law also adds state-level prohibitions against voter intimidation or attempts to obstruct voting. And it allows any voter or voting rights group to bring suit to enforce the provisions of the law.
New York still has restrictive voting laws, such as an early voter registration deadline and a requirement that voters provide an approved excuse to cast an absentee ballot. In November, the state’s voters rejected ballot initiatives to amend the state constitution to undo these rules. The state legislature’s passage of the John R. Lewis Voting Rights Act of New York is thus a major step forward.In recent months, many states have passed restrictive voting rights laws, spurred by the Big Lie about the 2020 election and the made-up specter of voter fraud. But start spreading the news: New York is moving in a more positive direction. Other states—even those with relatively expansive voting rules—should follow the Empire State’s lead and codify our most sacred right.