In a closely watched legal fight over how the federal Voting Rights Act can be enforced, civil rights groups have made an unusual move.
They relented.
Last Friday, attorneys led by the American Civil Liberties Union let a filing deadline pass at the U.S. Supreme Court, choosing not to ask the justices to review a controversial lower court ruling that threatens to help end one of the main ways for enforcing the landmark law’s protections against racial discrimination in the election process.
The groups say they are now considering other avenues for challenging a redistricting plan for Arkansas’ state legislature that they argue takes away meaningful opportunities for Black communities to elect representatives of their choice.
The roundabout legal strategy is resurfacing questions about the future of the Civil Rights-era legislation that the Supreme Court’s conservative majority has weakened through multiple rulings since 2013.
A Trump appointee’s 2022 ruling has put Voting Rights Act enforcement in seven states at risk
For decades, it’s been private individuals and groups — not the U.S. Justice Department on behalf of the federal government — that have brought the majority of lawsuits against a state or local government for violating the Voting Rights Act’s Section 2, one of the remaining parts of the law after a major Supreme Court decision struck down a key section and effectively dismantled another.
But in 2022, U.S. District Judge Lee Rudofsky, an appointee of former President Donald Trump, ruled that the civil rights groups representing Black voters in Arkansas are not allowed to challenge the state legislature’s redistricting plan under Section 2 because private groups and individuals are not explicitly named in the words of the Voting Rights Act that describe who enforces Section 2.
While Rudofsky found that the groups had presented a “strong” case that the Republican politicians on Arkansas' apportionment board created an election map that dilutes the collective power of Black voters in the state, the federal judge also cited a single-paragraph opinion by Justice Neil Gorsuch, Trump’s first Supreme Court appointee, who, months earlier in a separate case, said that lower courts have considered whether private individuals can sue an “open question.”
Ultimately, Rudofsky concluded that Section 2 lawsuits can be filed only by the head of the Justice Department.
The civil rights groups appealed — and lost. Last year, a panel of the 8th U.S. Circuit Court of Appeals upheld Rudofsky’s ruling, applying his interpretation that there is no “private right of action” under Section 2 to the seven states in the circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. In the panel’s majority opinion, Circuit Judge David Stras, a Trump appointee, wrote that for much of the past half-century, the assumption courts have made about the right of individuals and groups to sue “rests on flimsy footing.”
So the groups appealed again — and lost again. Their request for the full 8th Circuit to revisit the panel’s ruling was rejected in January.
The next stop would have been the Supreme Court. But the groups decided to shift from their appeal strategy, avoiding a potential situation in which all ongoing Section 2 lawsuits brought by private groups would be delayed or forced to pause while the high court reviewed the panel’s decision for the Arkansas case.
Civil rights groups look to a part of the KKK Act instead
In a press release on Monday, Arkansas Attorney General Tim Griffin, a Republican, said the move is “a win for Arkansans as it ends that challenge.”
“For far too long special interests groups have used Section 2 to hijack redistricting decisions and dictate how states conduct elections,” said the statement by Griffin, who declined NPR’s interview request.
The groups that brought the lawsuit — the Arkansas State Conference NAACP and the Arkansas Public Policy Panel — still believe that the 8th Circuit panel’s decision is radical, wrong and contrary to decades of precedent, Sophia Lin Lakin, director of the ACLU’s Voting Rights Project, tells NPR, but they are also thinking about the bigger picture.
“As of now, the fact is Section 2 suits continue to move forward across the country and even within the 8th Circuit under an alternative mechanism for vindicating rights,” Lakin says.
One of those lawsuits is based in North Dakota, where the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe and individual Native American voters have waged a Section 2 fight over a voting map by citing a separate federal statute known as Section 1983, an amended version of part of the 1871 Ku Klux Klan Act that was put in place after the Civil War to protect Black people in the South from white supremacist violence. These days, Section 1983 still allows people whose civil rights under federal law are violated to file lawsuits against state government officials.
The North Dakota legislative map approved by the state’s GOP-controlled legislature was struck down by a federal judge for diluting the power of Native American voters, prompting an appeal by North Dakota Secretary of State Michael Howe. In court filings to an 8th Circuit panel, the Republican official is arguing that Section 1983 doesn't apply to the Voting Rights Act’s Section 2.
But despite that argument, the ACLU is now considering challenging Arkansas’ state legislative map under Section 1983, and Lakin notes the Justice Department “can certainly bring a lawsuit if it decides to do so.”
“Black Arkansans’ rights can still be safeguarded,” she adds.
Lakin says she expects the Supreme Court to eventually take up a case about whether private individuals and groups can sue to enforce Section 2, pointing to other Republican officials questioning a private right of action in redistricting lawsuits in Georgia and Louisiana, where a panel of the 5th Circuit ruled last year in a congressional redistricting case that there is a private right of action under Section 2 and the full 5th Circuit declined last month to take up the question in a state legislative redistricting case.
Asked whether she wishes that back in 2021, she had filed the initial Arkansas lawsuit under Section 1983, Lakin says, “Hindsight is always 20/20.”
“No one would have thought that that was something that you would even have to consider,” she adds, noting that just last year the Supreme Court ruled in favor of a group of Black voters in Alabama who brought a Section 2 lawsuit challenging the congressional map drawn by the state’s Republican-controlled legislature.
While legal fights play out in the lower courts, Kareem Crayton, senior director for voting and representation at the Brennan Center for Justice at New York University’s law school, is watching to see if the next Congress passes a law that explicitly recognizes a private right of action under Section 2, which was recognized in congressional committee reports issued before the Voting Rights Act was amended in 1982.
“With the uncertainty that this Supreme Court seems to throw into about every matter known to man involving racial discrimination or fairness, particularly in the political system, it seems like the practical value of giving time to possibly get better and more specific legislation from Congress is not the wildest decision ever,” Crayton says.
Edited by Benjamin Swasey
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