Law360 Publishes Expert Analysis by William Brewer on Threat to the Voting Rights Act

January 19, 2024 – Partner William Brewer writes in Law360’s “Access to Justice” section about a split among circuit courts regarding private citizens’ ability to sue under Section 2 of the Voting Rights Act (VRA). Section 2 of the VRA prohibits voting practices and procedures that discriminate on the basis of race, color or membership in a language minority group.

“If allowed to stand, the ruling imperils the ‘foundational’ right to self-government and creates a split among circuit courts regarding the standing of private citizens’ ability to sue – casting doubt on the future protection of voting rights in the United States,” Brewer writes.

He writes that while the Supreme Court upheld the VRA in Allen v. Milligan in June 2023, a ruling by the Eighth Circuit in Arkansas State Conference NAACP v. Arkansas Board of Apportionment threatens the VRA by finding that only the federal government can bring Section 2 VRA cases, not individuals and groups. Days before the Eighth Circuit decision, the Fifth Circuit affirmed the existence of a private right of action in Robinson v. Ardoin, creating the circuit court split.

Brewer emphasizes that since Section 2’s passage, hundreds of suits have been brought by private citizens serving as plaintiffs.

“If the case proceeded to the Supreme Court and the court were to rule that there is no private right of action, it would gut Section 2 and offer voters of color no individual power to seek remedies under the law. Such a ruling would nearly destroy the VRA,” Brewer writes.

Brewer concludes by urging that the private right of action must be clarified and that, “The prioritization of fairness and equal access to the voting process should ultimately prevail – to protect the rights of private plaintiffs and the freedoms that define our democracy.”

Read the article here.

Associate Malvina Palloj and Brewer Storefront Associate Director Katherine Leal Unmuth contributed to the article. The Storefront is the Brewer firm’s community service affiliate and has brought many successful Section 2 VRA cases in North Texas.

Dallas Morning News Publishes Brewer Op-Ed on Voting Rights Act Decision

December 4, 2023 — The Dallas Morning News published an op-ed in the Opinion section Monday by partner William A. Brewer III about a new court decision that poses a threat to the Voting Rights Act. The opinion piece, “A dangerous precedent for the Voting Rights Act,” reflects the Brewer Storefront’s continued dedication to enforcing and upholding the Voting Rights Act in Texas communities. The Storefront is the firm’s community-service legal affiliate.

The commentary follows:

Just months after the U.S. Supreme Court upheld Section 2 of the Voting Rights Act, which safeguards against voting schemes that demonstrably dilute the votes of minorities, the law is again under attack.

Recently, a three-judge 8th Circuit Court of Appeals panel ruled 2-1 in a redistricting case filed in Arkansas, that only the federal government can bring a Section 2 voting rights challenge, thereby denying individuals and civil rights groups the right to file lawsuits challenging discriminatory election systems.

The lawsuit brought by the Arkansas State Conference NAACP and others alleges that a proposed redistricting map for the Arkansas House of Representatives denies Black voters an equal opportunity to elect candidates of their choice.

The decision is binding in seven states. The risk is obvious. North Dakota, one of the states covered by the decision, intends to appeal a recent federal judge’s ruling that protected Native American voting rights in the state after tribes and tribal members sued last year seeking a joint majority Native American state House district. State leaders are already seeking to leverage their self-interests over that of Native voters.

The 8th Circuit decision, if affirmed by the Supreme Court, could potentially lead to voters of color across the country being denied any ability to challenge voting systems that overtly deny fair representation.

Section 2 of the Voting Rights Act prohibits voting practices that discriminate based on race, color or membership in a language minority group. Since its passage in 1965, most Section 2 cases concern voters of color filing lawsuits that challenge at-large election systems, arguing that they deny voters of color a fair opportunity to elect candidates of their choosing. By an overwhelming margin, private plaintiffs (individual voters and groups), not the government, bring most Section 2 cases.

The 8th Circuit panel ruling in Arkansas State Conference NAACP vs. Arkansas Board of Apportionment reflects bad jurisprudence and poor historical research. Even worse, it is a potentially damaging outcome for the nation. Since 1965, the Voting Right Act has served as an important tool to protect the votes of those excluded from power by voting systems that deliver power to the few — and keep it from the many.

The Voting Rights Act is particularly relevant in Texas, where the population continues to diversify while, at the same time, elected bodies such as school boards and city councils employ voting schemes that frustrate outcomes that mirror the state’s demographics. Census figures reveal this year that Hispanics make up the largest share of the population in Texas, and yet this reality is not reflected among the political leadership on local and statewide elected bodies.

If this decision stands, it will leave only the U.S. Department of Justice and U.S. Attorney General empowered to bring cases, denying eligible voters the right to challenge their local election systems in court. We know that private lawsuits brought by citizens whose community employs inequitable voting schemes have compelled positive change.

In his dissent in the Arkansas ruling, 8th Circuit Chief Judge Lavenski Smith writes, “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.” Smith is a 2002 George W. Bush appointee, and is African American.

He added that the private plaintiff issue is best left to the Supreme Court.

Importantly, in June 2023, the Supreme Court upheld Section 2 of the Voting Rights Act in a 5-4 vote in Allen vs. Milligan, which was brought by private plaintiffs to protect Black voters.

Our firm is familiar with the importance of the private right of action. Our community service legal affiliate, the Brewer Storefront, has brought numerous voting rights cases in Texas challenging at-large election systems on behalf of Hispanic, Black, Asian and white plaintiffs.

The successful cases have resulted in revamped election systems, often by way of the creation of geographically drawn single-member district seats that include the creation of minority “opportunity” district seats where minority voters make up a majority.

Most importantly, these cases have created a pathway of opportunity: They have resulted in greater representation of minority voters and the election of minority candidates across North Texas.

For example, a Richardson Independent School District voting rights case brought by Brewer Storefront resolved in 2019 resulted in a previously all-white school board becoming majority-minority, better reflecting the majority-minority students the school district educates.

David Tyson, plaintiff in the Richardson ISD case, is a former RISD board member and the first Black American to ever serve on the board. He bravely stepped forward to sue. Tyson was honored this year by the Texas Legislature for his contributions to Richardson, following his voting rights achievement.

Yet, if this 8th Circuit ruling prevails, Tyson’s voice would have been silenced. The inequities of the voting system he challenged would remain today, to the detriment of schools, students and the broader community.

Removing the right of private individuals and organizations to sue under the Voting Rights Act would undermine the civil rights of voters not only in Texas, but nationally. Voting rights are central to civil rights in our democracy. We should fight to protect them at all costs.

New York Post Reports on Brewer Storefront Fraud Case

November 10, 2023 – The New York Post reported today about Brewer Storefront client Kimaya Taylor and her fraud case against a New York City consignment store. According to the article, “The owners of an Upper East Side antiques store are being sued by a series of clients who claim they were ripped off and had their heirlooms trashed.”

The article continues, “The owners of Sara’s Antiques, on Lexington Ave and E. 73rd St., are facing six lawsuits, a complaint to the police and to the city’s Department of Consumer and Worker Protection about their business selling treasures on consignment.” According to the Post, Sara’s proprietors Sayeh Sassouni Khorshad, and her husband Vahid Peter Khorshad, who goes by Peter, face a series of legal actions for selling the valuables of their clients and keeping the cash themselves, handing back one-off pieces badly damaged, or losing them entirely.

The Storefront is the legal community service affiliate of the Brewer firm.

Read more here.

Dallas Morning News Publishes Brewer Storefront Op-Ed on Election Timing

August 31, 2023 — The Dallas Morning News published an op-ed in the Opinion section Thursday by partner William A. Brewer III and Marie Brewer calling for the elimination of off-cycle May local elections in Texas and moving elections on-cycle to November to improve voter participation. The article reflects the Brewer Storefront’s continued dedication to enforcing and promoting the Voting Rights Act in Texas communities. The Storefront is the firm’s community-service legal affiliate.
 
The commentary follows:

In Texas, discriminatory voting practices that depress minority voter participation remain the norm. The Supreme Court’s recent decision in Allen vs. Milligan, upholding Section 2 of the Voting Rights Act, could spark legal challenges to our state’s local and state election systems going forward.

In our state, the Election Code mandates that general and special elections be held on one of the uniform election dates: the first Saturday in May, or the Tuesday after the first Monday in November. Although the code allows for elections to be held “on-cycle” (when state and federal elections occur), many local school board and city council elections are still held in May rather than November.

The timing of elections significantly impacts voter turnout. Experts, like political scientist Sarah F. Anzia, argue that the date of an election is the single greatest factor impacting voter turnout and composition. Other states recognize this and have adjusted their local elections accordingly. New York recently joined California, Arizona and Nevada in moving off-cycle local elections to coincide with statewide and national elections. These states point to increasing voter turnout and opportunity, specifically minority turnout, as the reason for the shift.

Fewer than 25% of Americans vote in elections for their local mayor and city council members, and turnout in off-cycle local elections averages over 30% lower than local elections held during presidential elections. In Texas, the situation is even more alarming. This past May, several major counties could not even reach 10% voter turnout.

All voting systems should aim to increase voter participation, and off-cycle elections especially warrant particular attention due to their disproportionate impact on minority voters. When off-cycle elections are moved on-cycle, minority groups increase their share of the electorate by up to 10 percentage points. Moreover, when local elections coincide with presidential elections, a larger share of voters come from families earning under $30,000 annually, while the share of voters earning more than $100,000 decreases.

When local elections are synchronized with national or statewide elections, the election date garners greater attention and accessibility across all voter groups. Conversely, off-cycle elections result in lower participation by large portions of eligible voters, and minority groups are disproportionately affected.

The past decade of social science research establishes that off-cycle elections undeniably affect voter participation and the makeup of voters who turn up at the ballot box, producing a voter pool that is not representative of the entire community.

As the courts have recognized, factors such as homeownership, education and income are strongly associated with voter turnout. Racial disparities in those factors can therefore contribute to racial disparities in political participation as well.

Although there may have been legitimate concerns in the 1800s and early 1900s that prompted off-cycle elections, such as the desire to separate local races from corrupt and partisan elections held at the federal and state level, there were also more problematic reasons aimed at discouraging voter participation from certain demographics.

Many local Texas communities, with a long history of racial discrimination, still experience disparities in wealth, education and homeownership. It is evident that under the totality of circumstances, off-cycle elections violate Section 2 of the Voting Rights Act. This was not a direct argument in Allen vs. Mulligan, but the case is instructive on many levels: It fosters the belief that voting rights should be protected and any barriers to equal opportunity should be eliminated. And with such a viable alternative of switching to on-cycle elections, there is no reason for this practice to persist where minority groups already struggle to make their voices heard.

Our institutions work best when they are welcoming and inclusive. Texas should embrace the learnings of the recent Supreme Court decision — and awaken to the many ways in which the Voting Rights Act can be used to foster political opportunity.

NBC DFW Reports on Voting Rights Settlement, Brewer Storefront

August 23, 2023 – NBC DFW reported on Brewer Storefront reaching a positive outcome with the Lewisville Independent School District (LISD) in a voting rights lawsuit against the district. NBC interviewed Dallas Morning News education reporter Talia Richman about the case and its importance to the community.  

Richman noted that the lawsuit alleged the school board’s at large elections resulted in a primarily white Lewisville ISD school board and denied some people of color the opportunity to elect candidates of their choosing. Richman stated that, “The law firm, the Brewer Storefront, has been taking these cases on in suburban districts across North Texas.” She mentioned how the Storefront has brought Voting Rights Act lawsuits against the Richardson and Irving school districts and, “a whole host of districts, that all employed this at large system saying instead of having everyone elect each seat you should have districts based on where you live.” Those school districts and others adopted election systems that included single member districts  and minority “opportunity” districts in which a majority of voters are people of color. As a result, minorities have been elected to the school boards in those communities.

Speaking of school boards across North Texas and the importance of their composition, Richman said, “These are the people who are making huge decisions, they’re hiring the superintendent, and they’re setting the budget. We’ve seen how much political infighting has taken place on school boards when it comes to these education culture wars. So they’re saying we really have to make sure that representatives match the makeup of the student body in Texas, which is increasingly becoming more diverse.”

Learn more about the Brewer Storefront’s voting rights work here.

Lewisville Independent School District Agrees to Provide District with Greater Political Opportunity

August 18, 2023 – The Brewer Storefront (“Storefront”) announced a settlement with the Lewisville Independent School District (“Lewisville ISD”) of the Voting Rights Act lawsuit it filed against the school district last year on behalf of plaintiff Paige Dixon. The outcome comes nearly three years after the Storefront sued Lewisville ISD under the Voting Rights Act. The Storefront is the community-service legal affiliate of Brewer, Attorneys & Counselors.

The agreement resolves all claims against Lewisville ISD.  All seven members of Lewisville ISD’s school board are currently elected at-large. The agreement provides for a new electoral system consisting of five single-member districts and two at-large districts. The new election system will include at least one single-member district comprised of a majority of eligible minority voters – paving the way for greater political opportunity in one of the largest and most diverse school districts in North Texas. 

“This is an important outcome for our client, the school district, local voters, and all who believe our political systems work best when they are inclusive,” says William A. Brewer III, partner at Brewer Storefront. “We applaud the Lewisville ISD school board for agreeing to adopt an electoral system that provides voters of color a fair opportunity to elect candidates of their choosing. We hope the board’s actions are instructive to other school boards and elected bodies.”

Eligible voters residing in each of the five single-member districts will vote for candidates running in that district in which the candidates also reside. The candidates who run for the two at-large seats may live anywhere within the school district. A public hearing to discuss the framework is scheduled for August 28, 2023.

Lewisville ISD is a very diverse school district. According to the Texas Education Agency, as of the 2021-22 school year, the school district enrolled 49,113 students. The majority-minority student body was 36.6% white, 30.7% Hispanic, 15.7% Asian, 12% African American, and 4.6% two or more races. About 33.6% of students were economically disadvantaged and 19.6% were English learners.

This lawsuit had become among the most closely followed cases of its kind. In 2020, a similar lawsuit against LISD was dismissed by a judge who found that the plaintiff, Frank Vaughan, who is white, lacked standing. That decision did not speak to the merits of the argument or whether LISD’s voting system complied with the Voting Rights Act.

“I applaud the pursuit of the prior case – in the interest of the school system and the community it serves,” says Dixon, who is African American. “I appreciate the work of the Storefront and its commitment to this issue, even as it had to travel a long road to secure this outcome. The school board’s decision to change the election system is admirable as well, especially to those of us who believe in the promise of LISD and its future generations. A new day has finally arrived at LISD.”

The Brewer Storefront successfully resolved Voting Rights Act cases with the Richardson Independent School District in 2019, Carrollton-Farmers Branch Independent School District in 2015, Irving Independent School District in 2014, and the Grand Prairie Independent School District in 2014. Those school districts now utilize remodeled voting systems to elect school board trustees. The Storefront also secured trial victories in Voting Rights Act cases against the City of Grand Prairie in 2015, the City of Farmers Branch in 2012, and the City of Irving in 2009. Those lawsuits paved the way for the formation of new voting systems and the election of minority candidates.

Joining Brewer in representing Ms. Dixon were Senior Associate Gizem Petrosino, Associate Malvina Palloj, and Public Affairs Manager Katherine Leal Unmuth.

About Brewer Storefront, PLLC:

Brewer Storefront is the community-service legal affiliate of the national litigation firm of Brewer, Attorneys & Counselors with offices in Dallas and New York. Founded in 1995, the Brewer Storefront tackles local and national issues, providing legal assistance to a wide range of individuals, business and community entities in need. Visit www.brewerstorefront.com.

News 12 The Bronx Reports on Brewer Storefront Fraud Lawsuit Against Consignment Business

July 6, 2023 – News 12 The Bronx reported on a lawsuit brought on behalf of Brewer Storefront client Kimberly Taylor against the owners of a New York consignment business for fraud concerning more than $650,000 in antiques she consigned. The investigative report chronicled many legal actions against the business.

Taylor sued the owners, Vahid Peter Khorshad and Sayeh Sassouni Khorshad, alleging fraud in connection with the antique vases, figurines, decorative art and jewelry she consigned at their Upper East Side Estate Sale store in 2021, which later closed and reopened as Sara’s Antiques. Filed on December 14, 2022, in New York Supreme Court in Manhattan, the lawsuit against the stores and their owners, alleges that Taylor consigned valuable items to Estate Sale, but was denied the return of her items and received no records or commissions of any sales.

“Unfortunately, our client is well into this nightmare a year and a half now,” William A. Brewer III, counsel to Taylor and founder of Brewer Storefront told News 12 Investigates. “Hundreds of thousands of dollars’ worth of valuables have not been returned and are unaccounted for.”

The report highlighted numerous other former customers who also said the Khorshads never gave them any commissions on sales nor did they recover their items.

The Brewer Storefront is the community-service legal affiliate of the national litigation firm of Brewer, Attorneys & Counselors, with offices in New York and Dallas.

Brewer Storefront, Voting Rights Act Plaintiff Prevail in Fifth Circuit

Decision “Leaves the Door Open” for Future Plaintiffs to Bring VRA Cases – No Matter Their Ethnicity

March 14, 2023 – The Brewer Storefront and Voting Rights Act plaintiff Frank Vaughan scored an important victory in an appeal to the U.S. Court of Appeals for the Fifth Circuit that may change the landscape of the Voting Rights Act.

The Storefront argued that Vaughan, a white man, had standing to bring a case challenging an at-large voting system in Lewisville Independent School District (LISD), which diluted the votes of minority members of the community. Filed in 2019, the case sought to “extend the law” – allowing citizens, no matter their ethnicity, to bring a lawsuit under Section 2 of the Voting Rights Act to address voter dilution.

The LISD School Board utilizes an “at-large” voting system – which allegedly dilutes the votes of non-whites in an increasingly minority school district. LISD argued Vaughan lacked standing and failed to create a genuine issue of material fact, as Vaughan “is not a member of any minority group he seeks to advocate for in his lawsuit (i.e., Asian, Black or Hispanic).”

The district court dismissed the case. LISD argued Vaughan’s lawsuit was frivolous, moved for sanctions, and was awarded almost $50,000 in attorneys’ fees.

The Storefront appealed, arguing Vaughan’s standing argument was no only meritorious, but that there was no precedent to foreclose Vaughan’s legal argument. Vaughan sought to establish a new legal standard – advocating that he did have standing as an aggrieved party residing within LISD. The Storefront successfully argued that sanctions were unwarranted. In an opinion, dated March 9, 2023, the Fifth Circuit confirmed there is no legal precedent barring Vaughan from pursuing a Voting Rights Act case.

The Storefront is the legal community service affiliate of Brewer, Attorneys & Counselors.

Writing for the Fifth Circuit, Circuit Judges Patrick E. Higginbotham, S. Kyle Duncan, and Kurt D. Engelhardt, stated, “We conclude that sanctions against Vaughan were unwarranted because precedent in this circuit does not squarely foreclose his legal argument and because he sought to extend existing law. [The] argument is not sanctionable simply because the district court concluded it was wrong, particularly given the ongoing evolution in courts’ views on standing in redistricting cases.”

“We achieved a primary goal in this case: to unsettle the view on standing adopted by the trial court, which denied a citizen the right to pursue a Voting Rights Act case,” says William A. Brewer, counsel to Mr. Vaughan and partner at Brewer Storefront. “In our view, Mr. Vaughan’s lawsuit had merit – and we applaud him for having the courage to pursue it.”

Brewer adds, “The Fifth Circuit wisely left the door open for future plaintiffs – of any ethnicity – to carry on this type of pursuit. We believe voting systems work best when they are more inclusive, giving everyone a voice in the electoral process.”

LISD has undergone dramatic demographic change in recent decades. About 25 years ago, approximately 84% of the district’s students were white, according to the Texas Education Agency. Whites now make up 41.3% of the enrollment; Hispanic students nearly 30%; Asian-American students about 14%; and Black students 10.7%.

Joining Mr. Brewer in this matter were associate Cory Ford and Public Affairs manager Katherine Leal Unmuth.

Read the opinion here.

Founded in 1995, the Storefront the Storefront handles individual matters that often establish legal precedent and make a long-term, positive impact on the community at large.

The Storefront has successfully challenged violations of the Voting Rights Act on behalf of other communities of interest in previous actions. The Storefront successfully resolved Voting Rights Act cases with the Richardson Independent School District in January 2019, the Carrollton-Farmers Branch Independent School District in 2015, and the Grand Prairie Independent School District in 2014. All districts now utilize remodeled voting systems. The Storefront also secured trial victories in Voting Rights Act cases against the Irving Independent School District in 2014, the City of Farmers Branch in 2012, and the City of Irving in 2009. Those lawsuits paved the way for the formation of new voting systems and the election of minority candidates.