For right-wing litigants, the line of communication has never been clearer. Their ideologically aligned Supreme Court justices send out messages — “trial balloons,” “bat signals” — in concurrences and dissents, raising a topic that maybe, perhaps, it would behoove a motivated lawyer to bring up in a case.
This time, a fellow judge picked up on the hint. U.S. District Judge Lee Rudofsky of Arkansas, a Donald Trump appointee, eagerly took up the qualms of Justices Neil Gorsuch and Clarence Thomas that private litigants could never actually sue under Section 2 of the Voting Rights Act — despite the fact that they’ve been doing so for decades.
Section 2 governs vote dilution in redistricting — where states, usually red ones, pack minority voters into one district or spread them out so their voting power is diffused — and is the most effective tool left to fight racial gerrymandering in federal court. Nearly all of these cases are brought by “private litigants,” often good government groups plus a handful of individual voters in the targeted area.
Earlier this week, David Stras, an 8th Circuit Court of Appeals judge and fellow Trump appointee, enthusiastically echoed Rudofsky’s reasoning in a decision dripping with disdain for voting rights groups (in which he was joined by Judge Raymond Gruender, a George W. Bush appointee). Both Stras and Gruender had appeared on the shortlist for Supreme Court candidates during the Trump administration.
“Quarreling over district lines begins like clockwork every ten years after the United States Census,” Stras eyerolled, sniping that the advocacy groups fighting what they claimed was a gerrymandered Arkansas House map had “sued nearly everyone who had anything to do with it under § 2 of the Voting Rights Act.”
Stras and Gruender agreed with Rudofsky that individuals couldn’t sue under Section 2. In fact, they wrote, only the U.S. attorney general could.
“Literally hundreds of Section 2 cases have been filed over the past several decades, and hundreds of federal judges have ruled on the merits in these cases without blinking an eye,” Travis Crum, a voting rights expert and associate professor of law at Washington University in Saint Louis, told TPM. “But two judges on the 8th Circuit decided that these hundreds of other judges had just missed the issue for decades.”
The two dismissed other related federal court decisions, Supreme Court guidance on the topic and the legislative record, where members of Congress said quite clearly that they intended the law to have a mechanism that allows individuals to sue.
Still, the sheer chaos the decision would unleash might prove too much even for the Roberts Court with its history of antagonism toward minority voting rights. If the 8th Circuit decision is allowed to stand by the Supreme Court, VRA cases would plummet. Even in Democratic administrations, a scarcity of attorneys and resources in the voting rights section of the Justice Department would make it difficult to pick up the workload currently carried by private plaintiffs. Under Republican administrations, enforcement would likely cease altogether.
“We’re tracking more than 200 redistricting cases following just this cycle alone, and the DOJ is involved in three. They didn’t even bring any of them, they just intervened in those three,” Doug Spencer, an election law and redistricting expert at the University of Colorado Boulder law school who runs All About Redistricting, told TPM.
VRA cases are also expensive and time consuming, meaning that many cases that could be litigated aren’t, even when the private right of action was fully intact.
“Private litigants are only bringing lawsuits in the most egregious cases where they’re all but guaranteed to win — we’re nowhere near the frontier of edge cases where they sometimes win, sometimes lose,” Spencer added.
If the 8th Circuit panel’s decision held, it would also reverberate in other jurisdictions which are currently embroiled in intense and critical redistricting litigation, on which control of the House in 2024 may well hinge. In Louisiana, one of the states where officials have gotten extremely creative in their attempts to delay having to draw an additional Democratic seat until after the election, officials are already citing the 8th Circuit decision in asking the 5th Circuit to reconsider the lawsuit against its congressional maps.
There’s also the matter of those aforementioned decades of VRA cases, which were litigated and decided under the assumption that individuals could bring these lawsuits.
“States that lost lawsuits to private litigants five years ago could ask judges to vacate or reverse those decisions,” Spencer said. “It’s gonna throw into disarray the past 50 years of holdings.”
For those reasons, plus Justice Brett Kavanaugh’s sporadic opposition to throwing elections into chaos and Chief Justice John Roberts’ majority opinion in last term’s major VRA case, experts generally doubt that the Supreme Court has the votes to uphold the 8th Circuit’s ruling.
But the case is a neat microcosm of the dynamics we’ve seen roil the judiciary since Trump’s election: super-activist Trump judges willing and eager to dispense with precedent in favor of political aims, Supreme Court justices in conversation with those judges in their briefs and right wing actors’ intense interest in winning legal battles that help Republicans maintain minority rule.
“This is all related to a shift in the conversation about whether we want to operate our country as a liberal democracy where everyone has a voice,” Spencer said, “or some other leadership scheme that’s much more authoritarian and shaped less by the will of the people.”