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Obscure legal theory could weaken voters’ protections from racist laws

by John Jefferson
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A federal court has embraced a novel legal theory that seriously threatens one of the last legs of the Voting Rights Act of 1965.

At the heart of the dispute is who has the right to bring a case under the law, a crown jewel of the civil rights movement that has worked to prevent voting discrimination against minorities. For more than half a century, the Department of Justice as well as private plaintiffs – anyone from an individual voter to a civic action group – have filed cases under section 2 of the law, which prohibits any voting practice or procedure that discriminates on the basis of race.

The case that could upend the law started out as a typical voting rights lawsuit. In late 2021, the Arkansas NAACP and the Arkansas Public Policy Panel sued the state, arguing that the new Arkansas house of representatives districts illegally discriminated against Black Arkansans by packing the Black vote into a disproportionately small number of districts.

But in a surprise ruling in 2022, a federal judge ruled that only the federal government, not private plaintiffs can file lawsuits under section 2. The US court of appeals for the eighth circuit has since upheld that ruling. The issue is likely to be ultimately resolved by the US supreme court.

Voting rights lawyers say the rulings are “radical and unprecedented”. For decades, the vast majority of cases under section 2 have been filed by private plaintiffs, not the government. Only allowing the government to bring section 2 cases would bring enforcement of the Voting Rights Act to a halt.

Since 1982 there have been 466 Section 2 cases. Only 18 were brought by the Department of Justice. The vast majority were brought by outside groups. A chart showing the distribution of cases over time, by plaintiff, shows that the majority of cases are brought by private parties.

“Private plaintiffs bringing cases under section two has been one of the hallmark ways to protect voting rights in this country,” said Jonathan Topaz, a staff attorney for the ACLU Voting Rights Project. “If private plaintiffs are unable to bring suit and vindicate their rights under section 2, then in our estimation, there will be large swaths of violations of section 2 that will go unremedied.”

Blocking non-government groups from filing suit under the VRA would be especially damaging after the supreme court’s 2013 ruling gutting a different provision in the law that required states with a history of voting discrimination to pre-clear any election changes with the Department of Justice before they went into effect. While private parties have long played a key role in enforcing section 2, getting rid of the pre-clearance provision has only escalated pressure on them to step up and essentially play Whac-A-Mole to identify voting discrimination.

Section 2 cases are often among the most complicated voting cases litigators can bring, but are powerful tools to fight racial discrimination. The provision can be used to challenge a wide range of practices – from the shape of a congressional district to the way in which members of a school board or city council are elected.

Proving a section 2 violation also requires what the supreme court has called “an intensely local appraisal” of the electoral mechanism in question. Doing so requires hiring experts who can do complex analyses of voting patterns and demographic data to see if a violation exists. Private groups are often better positioned to identify section 2 cases at the local level that can fly below the radar of the justice department. They can also move faster to undertake analyses and allocate resources without the bureaucratic hurdles of a vast federal agency like the Department of Justice.

“The limited federal resources available for Voting Rights Act enforcement reinforce the need for a private cause of action,” the Department of Justice wrote in an amicus brief explaining how it relies on private parties to enforce the law. “As the Supreme Court has noted, ‘[t]he Attorney General has a limited staff’ who may not always be able ‘to uncover quickly new regulations and enactments passed at the varying levels of state government.’”

According to Sophia Lin Lakin, the director of the ACLU’s voting rights project, getting rid of the ability of private parties to sue could grind enforcement of the Voting Rights Act to “all but a dribble of movement”.

“The reason you didn’t see attacks on this issue is, because aside from some random people kind of musing about it, no one thought Congress did anything other than give private parties the ability to sue,” she said.

The issue at the heart of the Arkansas case seemed to emerge out of nowhere.

Its genesis appears to have been a 125-word concurring opinion authored by Neil Gorsuch in a 2021 Arizona case that made it harder to challenge discriminatory voting laws.

“Our cases have assumed – without deciding – that the Voting Rights Act of 1965 furnishes an implied cause of action under §2,” Gorsuch wrote in the opinion, which was only joined by fellow conservative Clarence Thomas. “Lower courts have treated this as an open question … Because no party argues that the plaintiffs lack a cause of action here, and because the existence (or not) of a cause of action does not go to a court’s subject-matter jurisdiction … this Court need not and does not address that issue today.”

It was a clear invitation to lower court plaintiffs to bring a case challenging whether or not private plaintiffs can file section 2 litigation.

Less than six months later, Lee Rudofsky, a Trump-appointed US district judge who was overseeing the Arkansas case, took an interest in Gorsuch’s opinion. Even though neither the plaintiffs in the case nor Arkansas officials had raised an issue over whether private plaintiffs could sue, he pointed to Gorsuch’s opinion and asked for briefing on it.

A little over a month later, he dismissed the case, saying that no private right of action existed. Despite the NAACP having a strong case, Rudofsky wrote in his decision, “[T]he Court has concluded that this case may be brought only by the Attorney General of the United States.”

The ruling is part of a suite of attacks in recent years aiming to chip away at section 2, said Daniel Tokaji, an election law expert who is dean of the law school at the University of Wisconsin. “These are judges who are not terribly friendly to the voting rights and in particular to protections that racial minority groups have long had to wait for,” he said.

“Judges have made it more and more difficult for people whose voting rights have been violated, not just to succeed on that point, but even to get into court in the first place.”

While voting rights lawyers are alarmed by the eighth circuit’s decision to uphold the Arkansas ruling, they are quick to note that other jurists outside of the appellate circuit have yet to sign on. Since Rudofsky’s decision in the Arkansas case, litigants in Georgia, Florida, North Dakota, Texas, Wisconsin, Virginia, Colorado and Kansas have all made arguments in voting cases that no private right of action exists under section 2, according to Derek Zeigler, student attorney at the University of Michigan civil rights litigation initiative.

No other court so far has agreed.

Even if the supreme court were to ultimately gut the private right of action under section 2, election lawyers believe that another provision in federal law may allow private plaintiffs to bring private claims under Section 2. That provision, 42 USC 1983, authorizes any person to sue if rights protected by the constitution or federal statute have been violated.

Topaz, the ACLU voting rights lawyer, said voters of color would bear the burden of court rulings eliminating a private right of action.

“It is a terrible shame for Black Arkansans, whose political influence and political power continues to be diluted.”

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