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Minnesota Voting Rights Act Heard in House and Senate
The House and Senate elections committees heard a bill this week that would establish a private right of action under a new Minnesota Voting Rights Act, shifting the standard for the federal Voting Rights Act.
A bill that would establish a Minnesota Voting Rights Act passed out of both the House Elections Finance and Policy Committee and Senate Elections Committee during the week of March 4.
SF 3994 (Sen. Bobby Joe Champion, DFL-Minneapolis) and HF 3527 (Rep. Emma Greenman, DFL-Minneapolis) would provide for a private right of action under the Minnesota Voting Rights Act and a new prelegal process that would direct all claims under this act to local jurisdictions. League staff provided testimony at both hearings to share how it would impact cities.
Background
A ruling by the 8th U.S. Circuit Court of Appeals in November 2023 ruled that private litigants can no longer bring lawsuits under Section 2 of the federal Voting Rights Act (VRA), eliminating the ability for private groups or individuals to bring claims under a provision in the VRA that prohibits discrimination in redistricting and voting. This ruling contradicts the other circuit courts and decades of prior case law and could potentially be taken up by the U.S. Supreme Court. In response to the 8th Circuit Court decision, this bill aims to establish a private right of action under a new Minnesota Voting Rights Act.
Voter suppression and vote dilution
This bill would establish a prohibition on voter suppression and vote dilution. Under this bill, a political subdivision could be found in violation of the voter suppression prohibition by adopting or enforcing a law or ordinance or by taking an action or failing to take an action that results in a disparity in voter participation, access to voter opportunities, or the ability to participate in the political process for a protected class.
A political subdivision could also be found in violation of the vote dilution prohibition by adopting or enforcing any method of election, annexation, incorporation, dissolution, consolidation, or division of a political subdivision that has the effect of impairing the equal opportunity or ability of members of a protected class to nominate or elect candidates of their choice.
This bill establishes several definitions as they would relate to the Minnesota VRA, some that aim to mirror federal case law, while others in this section are distilled from complex, and sometimes contradictory, case law to establish a new legal standard for the Minnesota VRA.
The bill also establishes relevant factors that a court must consider in a case, and it lists which factors a court cannot consider in determining if a jurisdiction has violated the Minnesota VRA. Factors that must be excluded include the use of past elections practices or use of the same practices in another jurisdiction, and the availability of other forms of voting unimpacted by the challenged qualification.
Presuit notice
This bill would establish a new process in which all claims regarding the Minnesota VRA would begin with a presuit notice sent to a political subdivision. In this presuit notice, a prospective plaintiff would be required to include the potential violation, the affected protected class, and the type of remedy the potential plaintiff believes may address the violation.
A political subdivision would then be required to work with the party asserting a violation to attempt to implement a remedy that cures the violation, allowing 90 days after the passing of a resolution to enact and implement a remedy to do so. This section was amended to grant the Office of the Minnesota Secretary of State the authority to approve certain remedies in the event a deadline in statute would prevent a political subdivision from enacting a remedy. If a political subdivision lacks the authority to implement a remedy, they could file a petition to district court requesting the authority.
This section, as amended, would also require a local jurisdiction to pay costs to a prospective plaintiff if it implements a remedy in response to the presuit notice. The parties must agree on reimbursement, which is capped at $40,000. This section, before the adopted amendment, would have required the local jurisdiction to pay all costs associated with producing the presuit notice with no cap.
Right of action, remedies, and fees
This bill would establish a right of action for any individual or entity aggrieved by a violation of this act, establish a procedure for preliminary relief with respect to an upcoming election, and allow the court to order remedies if a violation is found.
An alleging party is considered to have prevailed if the party against whom the action was filed has yielded or was ordered to yield some or all of the relief sought in the action. If a political subdivision yields or is ordered to yield to some or all of the relief, the court must require they pay attorney fees and litigation costs, including expert witness fees and expenses, to the prevailing party.
Impact to cities
The new legal standard established in this bill for voting rights violations is important for cities to understand as it relates to their actions or inactions surrounding certain elections activities. Cities that exercise any discretion outside of elections requirements in state law in actions such as establishing polling places, redistricting, or utilizing an at-large council will need to understand how their discretion used in these actions could lead to a potential claim under this new act.
While statutory cities currently may only utilize an at-large council, the amendment to this bill would grant a statutory city the authority, by ordinance, to establish a ward-based council system, which is a remedy that has been previously ordered in violations of the VRA nationally.
League testimony and concerns
The League provided both in-person and written testimony in partnership with the Association of Minnesota Counties to share questions and concerns with members of the House and Senate elections committees. There continue to be questions regarding how this state law would change the legal standard from the federal VRA and whether the new standard would result in more claims against local jurisdictions.
The League also continues to ask for more clarity surrounding several of the key terms and concepts defined in the bill and how the factors to be excluded and included in court decisions would be interpreted by courts.
The League has also raised concerns regarding the presuit notice process created in the bill that would require local governments to analyze and interpret claims against themselves under the VRA; attempt to provide appropriate remedies outside of a court process; and pay any legal or research costs incurred by a prospective plaintiff’s creation of the presuit notice.
- Read the letter submitted by the League and the Association of Minnesota Counties (pdf).
- Watch a video of the League’s testimony at the House Elections Finance and Policy Committee hearing (41:45).
- Watch a video of the League’s testimony at the Senate Elections Committee hearing (49:16).
Next steps for the bill
HF 3527 was passed out of the House Elections Finance and Policy Committee on March 6 and rereferred to the House Judiciary Finance and Civil Law Committee. SF 3994 was passed out of the Senate Elections Committee on March 7 and rereferred to the Senate State and Local Government and Veterans Committee. League staff will continue to discuss questions and concerns as this bill relates to cities with the authors of the bills as they move forward.