Controversial Democratic Lawyer Argues Republican Majorities Are Evidence Of Racism Under The Voting Rights Act

Authored by Jonathan Turley,

There is another bizarre filing from Mark Elias, the controversial Democratic lawyer who helped to secretly fund the infamous Steele Dossier. In a new filing, Elias is challenging the district in New York City with the lone Republican member as violating the state voting rights act. Elias is effectively arguing that voting Republican is evidence of racism.

In the petition, voters bring a New York Voting Rights Act challenge, arguing that the Eleventh District “provides Black and Latino Staten Islanders “less opportunity than other members of the electorate to elect a representative of their choice and influence elections in New York’s 11th Congressional District (“CD-11”), in violation of the prohibition against racial vote dilution in Article III, Section 4(c)(1) of the New York Constitution.”

The filing occurs after New York moved to further gerrymander the state, aiming to eliminate more Republican members of Congress. Across the country, Democrats have pushed for such gerrymandering, but in New York, the efforts are particularly extreme.

Trump received 45 percent of the vote. Republicans are confined to a small handful of districts. It is still too much for Elias.

Elias has not only been sanctioned in past litigation, but past courts have also criticized his group. In Maryland,  Elias filed in support of an abusive gerrymandering of the election districts that a court found violated not only Maryland law but the state constitution’s equal protection, free speech, and free elections clauses. The court found that the map pushed by Elias “subverts the will of those governed.”

It was Elias who made the key funding available to Fusion GPS, which in turn enlisted Steele to produce his now discredited dossier on Trump and his campaign.

During the campaign, reporters did ask about the possible connection to the campaign, but Clinton campaign officials denied any involvement. Weeks after the election, journalists discovered that the Clinton campaign hid payments for the Steele dossier as “legal fees” among the $5.6 million paid to Perkins Coie.

New York Times reporter Ken Vogel said at the time that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”

It was not just reporters who inquired about the Clinton campaign’s role in the Steele dossier. John Podesta, Clinton’s campaign chairman, was questioned by Congress and categorically denied any contractual agreement with Fusion GPS. Sitting beside him was Elias, who reportedly said nothing to correct the misleading information given to Congress.

Back to the latest Elias filing. There is a pending case before the Supreme Court in Louisiana v. Callais that could curtail or end the use of race to set voting districts to favor black voters under the federal Voting Rights Act.

However, this is a novel claim that, even a gerrymandering state striving to reduce Republican members, a district is racist because it favors the election of a Republican  Thus, as Professor Josh Blackman noted “in a district where Democratic voters cannot elect a Democrat, they can bring a VRA claim, even in an overwhelmingly democratic state where there is not even a scintilla of evidence of racial discrimination.” However, the opposite is not true. In a red state with overwhelming Republican majorities, a district that effectively bars the election of a Republican could not be grounds for a VRA claim.

The filing proclaims that the heavily Democratic gerrymandered state shows that “New York has become a national leader in protecting voting rights.” It emphasizes that the state goes further than the federal VRA:

“the NY VRA does not require the plaintiff to show that a district could have been drawn that would have a majority of residents of a single protected class. A plaintiff need only show that the current district map is responsible for the protected class’s lack of electoral influence based on the existence of racially polarized voting or the totality of the circumstances.”

The filing makes clear that Black and Latino voters support democrats and thus a Republican member favoring the GOP dilutes their votes:

“Black and Latino voters on Staten Island are politically cohesive and consistently and overwhelmingly support the same candidates, which the rest of the electorate consistently opposes. At the same time, the white majority on Staten Island overwhelmingly supports the same candidates and votes as a bloc to usually defeat Black and Latino voters’ candidates of choice.”

In other words (with translation):

“Black and Latino voters on Staten Island are politically cohesive and consistently and overwhelmingly support [Democrats], which the rest of the [District] opposes. At the same time, the white majority on Staten Island overwhelmingly supports [Republicans] and votes as a bloc to usually defeat Black and Latino voters’ [Democratic] candidates of choice.”

So, even in a state that has artificially reduced Republican members and is claimed as a model of districting to enhance minority voters, any district that favors Republicans is still evidence of racist discrimination in voting. Presumably, the only way to truly guarantee the protection of minority voters in New York City is the effective elimination of any Republican member.