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 at the U.S. Supreme Court, choosing not to ask the justices to review that threatens to help end one of the main ways for enforcing the landmark law鈥檚 protections against racial discrimination in the election process.
The groups say they are now considering other avenues for challenging a redistricting plan for Arkansas鈥� 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鈥檚 conservative majority has weakened through multiple rulings .
A Trump appointee鈥檚 2022 ruling has put Voting Rights Act enforcement in seven states at risk
For decades, it鈥檚 been private individuals and groups 鈥� not the U.S. Justice Department on behalf of the federal government 鈥� that have brought the majority of lawsuits against a state or local government for violating the Voting Rights Act鈥檚 Section 2, one of the remaining parts of the law after struck down and effectively dismantled .
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鈥檚 redistricting plan under Section 2 because private groups and individuals are not explicitly named in the that describe who enforces Section 2.
While Rudofsky found that the groups had presented 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 , who, months earlier in a separate case, said that lower courts have considered whether private individuals can sue an 鈥渙pen question.鈥�
Ultimately, Rudofsky concluded that Section 2 lawsuits can be filed only by the head of the Justice Department.
The civil rights groups appealed 鈥� and lost. Last year, a panel of the 8th U.S. Circuit Court of Appeals , applying his interpretation that there is no 鈥減rivate right of action鈥� under Section 2 to the seven states in the circuit 鈥� Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. In the panel鈥檚 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 鈥渞ests on flimsy footing.鈥�
So the groups 鈥� and lost again. Their request for the full 8th Circuit to revisit the panel鈥檚 ruling was .
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鈥檚 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 鈥渁 win for Arkansans as it ends that challenge.鈥�
鈥淔or far too long special interests groups have used Section 2 to hijack redistricting decisions and dictate how states conduct elections,鈥� said the statement by Griffin, who declined NPR鈥檚 interview request.
The groups that brought the lawsuit 鈥� the Arkansas State Conference NAACP and the Arkansas Public Policy Panel 鈥� still believe that the 8th Circuit panel鈥檚 decision is radical, wrong and contrary to decades of precedent, Sophia Lin Lakin, director of the ACLU鈥檚 Voting Rights Project, tells NPR, but they are also thinking about the bigger picture.
鈥淎s 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,鈥� 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 , 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鈥檚 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 to the Voting Rights Act鈥檚 Section 2.
But despite that argument, the ACLU is now considering challenging Arkansas鈥� state legislative map under Section 1983, and Lakin notes the Justice Department 鈥渃an certainly bring a lawsuit if it decides to do so.鈥�
鈥淏lack Arkansans鈥� rights can still be safeguarded,鈥� 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 and , where ruled last year in a congressional redistricting case that there is a private right of action under Section 2 and the 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, 鈥淗indsight is always 20/20.鈥�
鈥淣o one would have thought that that was something that you would even have to consider,鈥� she adds, noting that just last year the Supreme Court who brought a Section 2 lawsuit challenging the congressional map drawn by the state鈥檚 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鈥檚 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 committee issued before the Voting Rights Act was amended in 1982.
鈥淲ith 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,鈥� Crayton says.
Edited by
Copyright 2024 NPR
