In their endless quest to further defang the Voting Rights Act and gerrymander their way into permanent control, Republican officials have launched a double-headed attack on the landmark civil rights law.
The new attacks emerge as Republican politicians attempt to wriggle out of judges’ orders requiring that they draw additional, majority-minority, likely Democratic districts in their states, which could imperil their party’s thin majority in the House of Representatives.
The attacks on the already-weakened VRA take two forms: arguing that the law doesn’t protect districts controlled by coalitions of multiple minority groups, and that only the U.S. attorney general — not individual voters represented by good government groups, as is most common — can bring lawsuits under the section of the law concerning illegal vote dilution.
Individuals’ Ability To Sue Under Section 2
Arkansas
In perhaps the most stunning voting rights decision this year, a split 8th Circuit Court of Appeals panel ruled that only the U.S. attorney general can bring VRA lawsuits under Section 2 — a wild break with precedent, decades of VRA cases, legislative intent and Supreme Court writing on the subject.
At least two Supreme Court justices — Clarence Thomas and Neil Gorsuch — had telegraphed their skepticism about the validity of suits brought by voting rights groups and other non-Department of Justice actors, called private rights of action. That likely prompted a Donald Trump-appointed district judge hearing an Arkansas gerrymandering dispute to raise questions about the mechanism (which neither party had) in the first place. Two 8th Circuit judges pounced on appeal.
If the 8th Circuit decision stands, VRA litigation would plummet even under Democratic administrations due to the simple reality that the DOJ cannot replace the volume of lawsuits, aimed at protecting the vote, brought each year by civil rights groups around the country. Such litigation would likely end altogether under Republican administrations.
The plaintiffs in that case, led by the Arkansas state conference NAACP, have asked for the case to be reheard en banc, in the hopes that the full circuit will overturn the ruling of two of its judges (both of whom made the Supreme Court shortlist during the Trump administration).
“The full Court should grant rehearing to reaffirm that a private right of action exists to enforce Section 2 of the VRA,” they wrote. “For almost 60 years — across hundreds of federal cases, including in the Supreme Court and this Court — the uniform answer has been ‘yes.’ By a 2-1 vote, the divided panel abruptly fractured this line of unbroken precedent.”
They noted that since 1982, more than 400 Section 2 cases have been litigated, almost all of which were brought by individuals. “Of the 182 successful Section 2 cases in that time,” they added, “only 15 were brought by the Attorney General alone.”
The court has ordered a response to the petition for the full circuit to hear the case by December 26.
Louisiana
Sensing an opportunity, Louisiana Republicans — perhaps the most energetic of all in their attempts to avoid drawing an additional majority-minority district — quickly glommed on to the Arkansas case. They invoked the 8th Circuit decision in an unsuccessful attempt to get en banc rehearing of their own case, where a 5th Circuit panel upheld a lower court’s finding that the congressional maps likely violate the VRA.
“New and important precedent has been handed down after the panel’s decision was published, which creates a definitive circuit split as to whether Section 2 of the Voting Rights Acts (“VRA”) confers a private right of action,” they wrote last month. “Just two days ago, the 8th Circuit ruled that Section 2 does not confer a private right of action. The State tendered the same argument with this Court, but it reached the opposite conclusion.”
They argued that the new circuit split strengthens their case for a more rigorous rehearing.
Voters and the NAACP retorted that a reversal in the Louisiana case would not remedy the circuit split the 8th Circuit created and reminded the court that they’d also brought their challenge under a separate law, covering their bases.
The panel ultimately rejected the Louisiana officials’ bid for a full circuit hearing — a convenient method of delay, the voters and NAACP pointed out — and the legislature is expected to produce a new map during a special session in mid-January.
Multi-Minority Group Coalitions
Georgia
Federal district judge Steve Jones wasn’t coy when he ordered Georgia lawmakers to draw an additional Black-majority district: “The State cannot remedy the Section 2 violations described herein by eliminating minority opportunity districts elsewhere in the plans,” he wrote.
But Republican lawmakers did just that, shuffling Black voters around and decimating Rep. Lucy McBath’s (D-GA) district — where a coalition of Black, Asian and Latino voters typically elect Democrats — in the process of drawing the court-ordered new district. Plaintiffs immediately lodged their objections to the new map, fuming that it “makes a mockery” of the judge’s order.
At a Wednesday hearing, Jones reportedly said that he’d take until late January to decide whether the new maps are in compliance. If he decides that they’re not — ruling that these kinds of coalitions are protected by the VRA the same way single-minority group districts are — he’ll appoint a special master to draw remedial maps. Republican officials would almost certainly try to challenge that finding, hoping to get the question before a VRA-hostile Supreme Court.
Texas
Another case out of Galveston County, Texas pushes on this same question. There, a 5th Circuit Court of Appeals panel reluctantly upheld a lower court’s finding that the county commissioner map was a violation of the VRA. It also asked the full 5th Circuit to overturn its own precedent.
“The court’s decisions in this respect are wrong as a matter of law,” the judges wrote. “The text of Section 2 does not support the conclusion that distinct minority groups may be aggregated for purposes of vote-dilution claims.”
Earlier this month, the conservatives on the Supreme Court allowed the maps — found by two courts to be illegal — to stand without comment. The liberal dissenters were less taciturn.
“In imposing a different map, acknowledged to violate current law — on the theory that the Circuit might someday change that law — the Court of Appeals went far beyond its proper authority,” chided Justice Elena Kagan.
The full 5th Circuit will hear the critical case in May.
