Discriminatory effects of election denialism may violate the Voting Rights Act

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 . A s 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.

I n 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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