The Case For State Attorney General Enforcement of the Voting Rights Act Against Local Governments

The summer of 2016 showed that racial discrimination in voting is alive and well, as federal courts across the country struck down state statutes that disproportionately disenfranchise minority voters, including voter ID laws, restrictions on early voting, and racially gerrymandered legislative districts. However, at the local level, discriminatory practices in the nation’s approximately 89,000 political subdivisions have gone largely uninvestigated and challenged. Recent conflicts between communities of color and law enforcement have highlighted the failure of local governments in places like Ferguson, Missouri to adequately represent the interests of minority voters. These failures of representation, which occur in progressive states like California as well as in more conservative states, are due in part to local election laws and practices that dilute minority voting strength. Section 2 of the Voting Rights Act provides a cause of action against vote dilution, but such cases are unusually complicated, expensive, and time-consuming with no promise of damages and highly uncertain recovery of attorneys’ fees to a prevailing plaintiff. As a result, few plaintiffs outside the federal Department of Justice and major civil rights groups have mustered the resources to prosecute cases under the federal Voting Rights Act. Although states could pass their own laws against vote dilution that would encourage more private plaintiffs to investigate and prosecute offending local governments, only California has passed such a law. The California Voting Rights Act (CVRA) addresses only a single discriminatory practice—the pervasive use of at-large methods of election in jurisdictions where racially polarized voting systematically defeats minority candidates. The CVRA has revealed that (1) vote dilution is widespread; (2) case-by-case litigation can have a deterrent effect under conditions that encourage private enforcement; and (3) more enforcement is needed to prevent local governments from evading scrutiny or backsliding. But, because the CVRA’s effectiveness is limited to only one class of practices in only one state, to increase the level of enforcement there is a need for new voting rights plaintiffs with the resources both to bring cases under Section 2 of the Voting Rights Act and to monitor compliance with judgments and settlements. State attorneys general can fill this need, and possess some advantages relative to both the United States Department of Justice (e.g., a narrower geographic focus and the ability to collect attorneys’ fees under the Voting Rights Act) and private plaintiffs (e.g., an imprimatur of law enforcement, in-house investigatory resources, and a “bully pulpit”). With the election of Donald Trump and the confirmation of Jeff Sessions as Attorney General, the need to find more resources to combat discrimination in voting is imperative as the Department of Justice appears poised to abandon Obama Administration’s enforcement efforts in favor of investigating groundless allegations of voter fraud. To date, no state attorney general has ever brought a Section 2 claim against a political subdivision, but this Article makes the case that state attorneys general can, and should, enforce the federal Voting Rights Act against local governments to protect minority voters.