Voting Rights Act case takes an unusual turn after controversial court rulings

In a closely watched legal battle over how to enforce the federal Voting Rights Act, civil rights groups have taken an unusual step.

They gave way.

Lawyers led by the American Civil Liberties Union missed a filing deadline with the U.S. Supreme Court last Friday, deciding not to ask the justices to review a controversial lower court ruling that threatens to end one of the main ways racial discrimination laws are enforced in the election process.

The groups say they are now considering other ways to challenge a redistricting plan in the Arkansas state legislature that they say denies black communities real opportunities to elect representatives of their own choosing.

The circuitous legal strategy is raising renewed questions about the future of civil rights-era legislation that the conservative majority on the Supreme Court has weakened in numerous rulings since 2013.

Trump appointee’s 2022 ruling threatens enforcement of the Voting Rights Act in seven states

For decades, individuals and groups — not the U.S. Justice Department on behalf of the federal government — have brought most lawsuits against state and local governments for violating Section 2 of the Voting Rights Act, one of the remaining parts of the law after a major Supreme Court decision invalidated a key section and effectively unsettled another.

But in 2022, U.S. District Judge Lee Rudofsky, appointed by former President Donald Trump, ruled that civil rights groups representing black voters in Arkansas could not challenge the state Legislature’s Section 2 redistricting plan because the private groups and individuals were not explicitly mentioned in the language in the Voting Rights Act that describes who enforces Section 2.

While Rudofsky said the groups made a “powerful” case that Republican politicians on the Arkansas apportionment commission had created an electoral map that weakens the collective power of black voters in the state, the federal judge also cited a one-paragraph opinion by Justice Neil Gorsuch, Trump’s first Supreme Court nominee, who had said in a separate case months earlier that lower courts had considered whether individuals could sue in “open question” cases.

Ultimately, Rudofsky concluded that only the head of the Justice Department could file Section 2 lawsuits.

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 seven states in the circuit—Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. In the panel’s majority opinion, U.S. District Judge David Stras, a Trump appointee, wrote that for most of the past half-century, the assumption that courts have made about the right of individuals and groups to sue “rested on a shaky foundation.”

So the groups appealed again — and lost again. Their request for a rehearing of the panel’s decision by the full 8th Circuit was denied in January.

The next stop would be the Supreme Court. But the groups decided to move away from their appellate strategy, avoiding the potential for all ongoing Section 2 lawsuits filed by private groups to be delayed or forced to stay while the high court considers the panel’s decision in the Arkansas case.

Civil rights groups instead invoke parts of the Ku Klux Klan Act

In a press release Monday, Arkansas Attorney General Tim Griffin, a Republican, said the decision was “a victory for the people of Arkansas because it ends that fight.”

“For too long, special interests have used Section 2 to hijack districting decisions and dictate to states how they conduct their elections,” said Griffin, who declined NPR’s request for an interview.

The groups that filed the lawsuit — the Arkansas State Conference NAACP and the Arkansas Public Policy Panel — still believe the 8th Circuit panel’s decision is sweeping, flawed and contrary to decades-old precedents, Sophia Lin Lakin, director of the ACLU’s Voting Rights Project, told NPR, but they’re also thinking about the bigger picture.

“The fact is, right now, Section 2 lawsuits are still being litigated across the country and even in the 8th Circuit under the alternative redress mechanism,” Lakin says.

One of those lawsuits is in North Dakota, where the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe, and individual Native Americans have brought a Section 2 dispute over the voting map, citing a separate federal statute known as Section 1983, an amended version of part of the 1871 Ku Klux Klan Act that was enacted after the Civil War to protect black Southerners from white supremacist violence. Today, Section 1983 still allows people whose civil rights under federal law have been violated to file lawsuits against state government officials.

A North Dakota legislative map approved by the state’s GOP-controlled legislature has been invalidated by a federal judge for undermining Native American power, prompting North Dakota Secretary of State Michael Howe to appeal. In court papers filed with an 8th Circuit panel, the Republican official argues that Section 1983 does not apply to Section 2 of the Voting Rights Act.

Despite this argument, however, the ACLU is currently considering challenging Arkansas’s electoral district map under Section 1983, and Lakin notes that the Justice Department “certainly could file a lawsuit if it chose to do so.”

“The rights of black Arkansas residents can still be protected,” he added.

Lakin says he expects the Supreme Court will eventually take up a case on whether individuals and groups can sue to enforce Article 2, pointing to other GOP officials challenging private right of action in redistricting lawsuits in Georgia and Louisiana, where a Fifth Circuit panel ruled last year in a redistricting case that there is a private right of action under Article 2, and the full Fifth Circuit declined to address the issue last month in a redistricting case in the state legislature.

Asked if she would like to see the first 1983 lawsuit filed against Arkansas in 2021, Lakin replied, “It’s a wise Pole to know after the event.”

“Nobody would have thought that this would even be a consideration,” he added, noting that just last year the Supreme Court ruled in favor of a group of black voters in Alabama who filed an Article 2 lawsuit challenging the congressional district map drawn by the Republican-controlled state legislature.

As legal battles play out in lower courts, Kareem Crayton, senior director of voting and representation at the Brennan Center for Justice at New York University Law School, is watching to see if the next Congress will pass a law that explicitly recognizes the private right of action under Section 2, recognized in congressional committee reports issued before the 1982 amendment to the Voting Rights Act.

“Given the uncertainty that the Supreme Court throws into almost every case known to man about racial discrimination or fairness, especially in the political system, it seems that the practical value of taking the time to possibly get better and more detailed legislation from Congress is not the strangest decision in history,” Crayton says.

Edited by Benjamin Swasey

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