Attorneys with the American Civil Liberties Union are planning to ask the full 8th U.S. Circuit Court of Appeals to review a panel ruling that struck down a key path for enforcing the Voting Rights Act.
The ruling in an Arkansas redistricting lawsuit may set up the next U.S. Supreme Court fight that could further limit the reach of the Voting Rights Act's protections for people of color.
The legal dispute is focused on who is allowed to sue to try to enforce key provisions under Section 2 of the landmark civil rights law, which was first passed in 1965.
Private individuals and groups, who did not represent the U.S. government, have for decades brought the majority of Section 2 cases to court. Those cases have challenged the redrawing of voting maps and other steps in the elections process with claims that the voting power of people of color has been minimized.
U.S. District Judge Lee Rudofsky, an appointee of former President Donald Trump, ruled in February 2022, however, that only the head of the Justice Department, the U.S. attorney general, can bring Section 2 lawsuits and dismissed an Arkansas redistricting case brought by advocacy groups representing Black voters in the state.
On Nov. 20, that lower court ruling was upheld in a 2-1 vote by a three-judge panel of the 8th U.S. Circuit Court of Appeals, whose rulings apply to Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
"For much of the last half-century, courts have assumed that [Section 2] is privately enforceable. A deeper look has revealed that this assumption rests on flimsy footing," wrote Circuit Judge David Stras, a Trump appointee, in the majority opinion joined by Judge Raymond Gruender, an appointee of former President George W. Bush.
Chief Circuit Judge Lavenski Smith, another Bush appointee, dissented.
"Until the [Supreme] Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy. 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 wrote.
Ultimately, many legal watchers say this Arkansas case may be appealed to the Supreme Court.
This latest ruling comes after the Arkansas State Conference NAACP and the Arkansas Public Policy Panel filed a Section 2 lawsuit over Arkansas' state House map, arguing that it dilutes the voting power of Black people. According to the 2020 census, 16.5% of the state's population is Black. But only 11 out of Arkansas' 100 state House districts in the redistricting plan drawn by Republican politicians are majority-Black districts, where Black voters have a reasonable chance of electing a representative of their choice.
In the trial court ruling dismissing the case, Rudofsky noted "there is a strong merits case that at least some of the challenged districts" in the GOP politicians' plan are "unlawful" under Section 2.
Attorneys for the Arkansas State Conference NAACP and the Arkansas Public Policy Panel have said they're prepared to use another route for continuing this lawsuit under a federal statute known as Section 1983, which allows people to sue state government officials when their civil rights under federal law are violated.
"This decision is a devastating blow to the civil rights of every American, and the integrity of our nation's electoral system," said Barry Jefferson, political action chair of the Arkansas State Conference NAACP, in a statement.
Sophia Lin Lakin, director of the American Civil Liberties Union's Voting Rights Project, who is representing the Arkansas State Conference NAACP and other challengers of the Arkansas state legislative map, called the panel's ruling "a travesty for democracy."
"By failing to reverse the district court's radical decision, the Eighth Circuit has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for," Lakin added in a statement.
But Arkansas state Attorney General Tim Griffin, whose office is defending the Republican politicians on Arkansas' apportionment board and the map they approved, said Monday's decision by the panel is "a victory for our citizens and for the rule of law."
"For far too long, courts across the country have allowed political activists to file meritless lawsuits seeking to seize control of how states conduct elections and redistricting. This decision confirms that enforcement of the Voting Rights Act should be handled by politically accountable officials and not by outside special interest groups," Griffin said in a statement.
In a June ruling for a closely watched Alabama congressional redistricting case — which was filed by a group of Black voters in Alabama and other private groups — a majority of the Supreme Court justices reaffirmed the court's earlier rulings on how Section 2 of the Voting Rights Act prohibits racial gerrymandering in crafting political districts.
Since then, a federal judge has struck down Georgia's congressional and state legislative maps and a 5th Circuit panel has concluded Louisiana's congressional map likely diluted Black voters' power — both in similar Section 2 lawsuits originally filed not by the U.S. attorney general, but by individuals and groups who do not represent the federal government.
Edited by Benjamin Swasey
JUANA SUMMERS, HOST:
It's one thing to have laws and another to enforce them. Today a federal appeals court struck down a key path for enforcing the Voting Rights Act. The dispute has to do with who has the right to sue in order to enforce protections in that landmark law. In the end, this lawsuit could end up making it harder to fight racial discrimination in voting. NPR's Hansi Lo Wang has been tracking this case. Hi.
HANSI LO WANG, BYLINE: Hi, Juana.
SUMMERS: OK, get us up to speed here. In the past, how has the Voting Rights Act been enforced?
WANG: Well, there's been two ways of enforcing protections for people of color under Section 2 of the Voting Rights Act - either the Justice Department can sue on behalf of the federal government or private individuals and groups who do not represent the government can sue.
SUMMERS: OK, and is one way more common than the other way?
WANG: Yes. The majority of cases are brought by individuals and groups, not the Justice Department. And that's what happened in this redistricting lawsuit out of Arkansas that this appeals court panel ruled on today. Groups representing Black voters in Arkansas sued. They challenged Arkansas' state legislative map and argued it was drawn in a way that dilutes the collective voting power of Black voters in the state. And a lower court judge said these groups have a strong case, but the judge ultimately threw out the case because the judge said these groups do not have a right to sue.
SUMMERS: And why is that? Why did the judge say that?
WANG: Well, this judge is U.S. District Judge Lee Rudofsky. He was appointed by former President Donald Trump. And Rudofsky said the actual words of Section 2 of the Voting Rights Act do not explicitly say that private individuals can bring lawsuits, and that only the head of the Justice Department, the U.S. attorney general who's named in the law, can sue. And, you know, what's remarkable is that until this case, no judges have used this argument to dismiss voting rights cases. And back in 1982, when Congress amended the Voting Rights Act, there were reports from House and Senate committees that said private individuals have the right to sue. And legal scholars I've talked to say this has never been a real question before.
SUMMERS: OK, help us understand the implications here. How could all of this make it harder to fight racial discrimination in voting?
WANG: If private individuals and groups are not allowed to sue, that means it'll be up to only the Justice Department to enforce Section 2 of the Voting Rights Act, and a change in presidential administration could change the level of priority for these types of cases. And, you know, I think we have to remember that Section 2 is one of the few remaining sections of the Voting Rights Act that have survived after a decade of Supreme Court rulings that have weakened other key parts of this landmark law.
SUMMERS: That's right. And this ruling out today - it's from a federal appeals court. But I would have to imagine this will not be the final word on this question, right?
WANG: It likely won't be. I'm watching to see if attorneys ask the full 8th Circuit - all the judges - to review today's ruling. And, you know, of course, it's likely that whatever the full 8th Circuit rules on gets kicked up to the Supreme Court. And, you know, it's really important to, I think - to also point out that one particular Supreme Court justice a couple years ago mentioned this issue in a paragraph that was tacked on to a major ruling. This is Justice Neil Gorsuch. And many court watchers saw it as a signal that Gorsuch is interested in having the Supreme Court weigh in on this issue.
SUMMERS: NPR's Hansi Lo Wang, thank you.
WANG: You're very welcome, Juana. Transcript provided by NPR, Copyright NPR.