The twenty-first century has not been kind to the right to vote in the United States.1 Congressional neglect and judicial erosion have left the right to vote — the “crown jewel”2 of civil rights — in rough shape. Fortunately for those who prefer democracy open and fair,3 Congress and the Supreme Court are not the only games in town. As D.C. leaves democracy behind, states have filled the void, passing their own state voting rights acts4 (SVRAs) to ensure fair electoral processes. In June 2023, Connecticut added its own.5 Among many reforms, the Connecticut Voting Rights Act (CTVRA) follows counterpart SVRAs by lowering the threshold at which plaintiffs can establish vote dilution.6 The CTVRA’s more flexible standard represents an important step forward in expanding plaintiffs’ ability to advance vote dilution claims. Future SVRAs should further empower vote dilution plaintiffs by expressly allowing them to prove underrepresentation through their benchmark of choice. Moreover, SVRAs should extend that codification of plaintiff deference to the remedial stage. By clarifying vote dilution standards and shifting remedial power toward claimants, future SVRAs can take the next step toward empowering plaintiffs and encouraging imaginative and effective solutions to political inequality.
Congress has not taken meaningful action to update or strengthen the Voting Rights Act of 19657 (VRA) since its 2006 reauthorization.8 Recent Supreme Court decisions have eroded the VRA’s key provisions and undermined its guiding principles: the Court has upheld significant burdens on voting,9 struck down the VRA’s coverage formula for preclearance,10 and declared partisan gerrymandering federally nonjusticiable.11 The Court has invited (or at least acknowledged) potential congressional action.12 But Congress has thus far declined the invitation.
In that absence, several states have attempted to fill the void. Beginning with the California Voting Rights Act13 (CAVRA) in 2002, eight states have now enacted SVRAs,14 and at least three more are considering their own.15 These laws vary substantially in their provisions, standards, and procedures. But they all share a core purpose: adding, clarifying, and strengthening protections for underrepresented voters.16
Connecticut became the eighth SVRA state on June 12, 2023, when Governor Ned Lamont signed House Bill 6941.17 Prior to passage, advocates identified Connecticut as one of the most vote-restrictive non-Southern states.18 Organizations including the NAACP and ACLU of Connecticut detailed the state’s disappointing history of democratic protections and identified opportunities for statutory remedy.19 An earlier CTVRA stalled without passing in 2022.20
Like other SVRAs, the CTVRA aims to prevent vote denial, remedy vote dilution, and improve electoral access across municipalities.21 Section 412 creates a “database of information necessary to assist the state and any municipality” in complying with CTVRA provisions, “implementing best practices in election administration,” and “investigating any potential infringement upon the right to vote.”22 Section 413 allows the state to direct municipalities to make electoral materials and procedures available in languages other than English to accommodate non-English-speaking voters.23 Section 414 requires preclearance in covered jurisdictions24 of any regulation concerning voting qualifications, election methods, governmental structure, municipal boundaries, voter rolls, or polling places.25 Section 415 creates a civil cause of action under which Connecticut voters can sue individuals who use “intimidation, deception[,] or obstruction [to] interfere” with their right and ability to vote.26 Section 416 instructs interpreters to construe the bill “liberally,” with presumptions toward accessibility and equality of voting opportunity.27 Section 418 allows prevailing plaintiffs to recover the costs of litigation.28
Among the CTVRA’s most notable provisions is section 411. This section establishes standards for identifying and rectifying vote dilution,29 in which electoral schemes interact with demographics and political geography to systematically underrepresent minority voters. Compared to the federal VRA, the CTVRA creates a much more liberal vote dilution standard. Claimants under federal law must satisfy three preconditions established in Thornburg v. Gingles30: first, that the underrepresented group “is sufficiently large and geographically compact to constitute a majority in a [hypothetical] single-member district”;31 second, that minority group members are “politically cohesive”;32 and third, that the “white majority votes sufficiently as a bloc” so as to consistently defeat minority-preferred candidates.33 Following other SVRAs,34 the CTVRA eases these requirements, eliminating Gingles’s first prong and condensing the second and third into a general showing of racial polarization that has a “dilutive effect” on minority voting power.35
The Gingles preconditions have severely limited the federal VRA’s ability to remedy vote dilution.36 By modifying the federal test, the CTVRA makes a promising start toward a stronger, more expansive regime. But it should go even further. Future SVRAs should expressly allow plaintiffs to prove underrepresentation through the alternative of their choice37 and, at the remedial stage, provide plaintiffs with the first cut at proposing a better, fairer system.
Vote dilution requires comparison: Dilution relative to what? Benchmarks answer that question, providing the alternative by which plaintiffs can show that existing schemes result in underrepresentation.38 Benchmarks also demonstrate by implication that a lawful and workable alternative exists. Gingles’s first prong limits the scope of those alternatives by prescribing one particular benchmark: a hypothetical compact single-member district in which a minority group constitutes the majority.39 But as scholars have noted, and states have no doubt observed, this prong is the death of many federal VRA challenges.40 Compactness is an onerous and often arbitrary requirement that blocks relief for minority voters who face underrepresentation but, because of political geography, cannot satisfy Gingles.41
By removing the compactness requirement, the CTVRA signals its openness to a much broader set of vote dilution claims. What the statute does not discuss is how plaintiffs may prove (or courts may find) underrepresentation.42 It disclaims the Gingles interpretation, but then, like other SVRAs before it, the CTVRA “fail[s] to finish th[e] thought.”43 After getting rid of one benchmark, the CTVRA fails to identify a replacement or to explain how plaintiffs themselves can identify one,44 leaving it “anyone’s guess what amounts to underrepresentation.”45
The absence of benchmarks threatens to leave the CTVRA too vague to be useful. Without more clarity, courts could opt for generosity toward plaintiffs — or they could fall back on Gingles or some similarly restrictive interpretation. If they did the latter, the law would lose its teeth, with frustrating consequences for the voters the CTVRA aims to benefit. Similarly, the law’s silence makes it difficult to match potential benchmarks to potential remedies. Without specificity, the CTVRA goes only as far as judicial interpretations are willing to take it.
A stronger statute would expressly authorize claimants to prove underrepresentation compared to any lawful scheme, rule, or procedure that would create more opportunity for minority voters to elect their preferred representatives. Even better, it could list alternatives that plaintiffs may employ: alternative maps, including additional majority or coalition districts; modified at-large remedies, like cumulative or ranked-choice voting; new voting procedures; and so on.
In states with more mature SVRAs, even positive judicial outcomes demonstrate the risks of vague language. Scholars and advocates lauded46 a recent decision47 holding that the CAVRA allowed plaintiffs to prove vote dilution in an at-large system via comparison to any “lawful alternative electoral method.”48 That interpretation indeed aids plaintiffs; the problem is that the court had to interpret at all. Relying on judges to divine plaintiff empowerment leaves it to courts to “finish th[e] thought”49 when state legislatures could do so themselves. Instead of expecting or hoping for judicial generosity, future SVRAs should simply require it. This clarity would guarantee the California approach, granting plaintiffs numerous ways to prove underrepresentation and preventing courts from falling back on more restrictive defaults.
Upon finding liability, future SVRAs should take a claimant-friendly approach to remedy, too. Specifically, upon finding liability, SVRAs should provide plaintiffs an opportunity to supply the proposed remedy, with a presumption toward adoption. Benchmarks at the liability stage implicitly connect to remedies — after all, benchmarks are how plaintiffs show a better alternative is possible. SVRAs should craft remedial procedures to ensure that when voters win their claims on the merits, they play the lead in designing the new system of representation.
Shifting deference to plaintiffs’ remedies would only subtly change current law. Courts have long read the federal VRA to require deference toward defendants, allowing states and municipalities a first cut at choosing and designing the remedial scheme.50 This system has an obvious problem: it trusts liable jurisdictions to fix their own discrimination. And jurisdictions have taken advantage, winning narrow remedies that comply with law but fail to deliver fair representation.51 The CTVRA recognizes this problem, preventing courts from prioritizing proposed remedies simply because municipalities proposed them.52 But SVRAs should go further, affirming that courts can and should instead prioritize remedies supplied by prevailing voters.
Consider an illustration. Let’s say plaintiffs in a Connecticut city prove vote dilution by showing that their at-large council elections underrepresent minority voters compared to a hypothetical system of cumulative voting.53 Under the federal VRA, courts would begin the remedial process by giving the city the first opportunity to design a lawful remedy. Instead, SVRAs could give that first cut to the claimants. They could propose that the city adopt the cumulative voting system discussed at trial. Or they could go back to the drawing board to identify a stronger, even better-tailored remedy. Claimants need not have carte blanche to impose any solution. The small but important difference would be who goes first: here, plaintiffs every time.
This subtle change would have substantial payoff. First, empowering claimants would encourage stronger remedies. SVRAs seek to reach dilutive electoral systems outside the Gingles framework.54 But countless political procedures and electoral schemes can dilute minority voting power. As the CTVRA recognizes, no single framework can capture every instance, and no single remedy can correct every case. Remedying vote dilution requires “an intensely local approach.”55 Who better to craft that approach than the locals themselves?
Compare claimant deference to another option: judicial discretion. Not only do judges lack plaintiffs’ firsthand experience of underrepresentation; they may also lack the disposition toward the “innovative and nontraditional remedies”56 that political equality often demands.57 There is also evidence that many judges — particularly non-Black ones — are just not likely to take vote dilution claims that seriously.58 Granting plaintiffs a chance to design the terms of their representation, even if nonbinding, would nudge remedial processes toward expansive solutions that may never otherwise reach the table.59
Second, to the extent claimant-proposed remedies are more creative and better tailored, they are likely to be more effective, too. Though nontraditional remedies to vote dilution claims are relatively rare — they are nontraditional, after all — theoretical reasons60 and empirical evidence61 suggest that they can result in more equal representation when appropriately applied. And even if courts ultimately moderate or reject those proposals, their mere introduction can push jurisdictions, via compromise or deliberation, toward more claimant-friendly solutions they could otherwise ignore.62
In this respect, plaintiff deference is a modest proposal. There is a difference between prioritizing claimant remedies and rubberstamping them. SVRAs should incorporate criteria to ensure proposals appropriately and persuasively fit the vote dilution theory that plaintiffs have claimed. States should build in protections, for example, against remedies resulting in “super-proportional” representation, so that plaintiffs cannot replace one unrepresentative system with another.63 Deference is a small ask: when plaintiffs win on the merits, they should get a chance to design a fair solution, too.
Future SVRAs could support the same goal in many ways. Independent commissions, modeled after approaches to redistricting,64 could implement dilution remedies according to statutory requirements. An arbitration-like system could see outside mediators manage competing arguments to arrive at a solution.65 Each model has shown promise in achieving more representative democracy66 through guided compromise.67 States could employ a kind of modified preclearance, requiring municipalities to introduce evidence, before passage, of a proposed electoral change’s effects on representation.68 Each option could serve democracy by subverting municipal deference, constraining judicial discretion, and bolstering the plaintiffs’ role in remedial design.
These strategies shift power toward vote dilution claimants, both at trial and — crucially — before it. Claimants have litigated few state vote dilution cases.69 SVRAs are mostly quite new; litigation is often “prohibitively costly”;70 and the CTVRA, like its counterparts, nudges parties toward pretrial resolution.71 In California, for example, under the oldest SVRA, many cases resolve outside of court.72 But a more claimant-friendly standard, paired with the threat of more sweeping remedies, would empower voters at any stage. Jurisdictions may think twice before moving forward with dilutive electoral schemes. They may agree to settle when voters challenge unrepresentative systems. And they may listen more closely when voters ask for substantial remedies. In any case, democracy wins the day.
SVRAs are already “the most exciting development in the voting rights field in years.”73 And the CTVRA is a promising step forward in state efforts to secure voting rights and promote equal democracy. Its open-ended approach to vote dilution creates an opportunity to meaningfully identify and remedy representational violations that the federal VRA has historically ignored. By clarifying their standards and writing greater claimant ownership into the remedial process, future SVRAs can go even further to ensure voters can make their case, structure their solution, and break down the barriers standing between them and representative democracy.