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On the Monday before Thanksgiving, a federal appeals court inflicted a likely fatal wound to the landmark Voting Rights Act of 1965.
In a 2-1 ruling, the 8th U.S. Circuit Court of Appeals tossed aside decades of precedent and ruled that citizens can’t challenge racial gerrymandering through the VRA. Only the U.S. Attorney General can enforce Section 2 of the VRA, the appeals panel declared.
The circuit judges agreed with U.S. District Judge Lee Rudofsky by dimissing the lawsuit that challenged Arkansas’ 2021 House redistricting map.
If allowed to stand, the decision will make it much harder to enforce what’s left of the VRA in the seven states that make up the 8th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
There’s been no word yet from the plaintiffs — the Arkansas State Conference NAACP and the Arkansas Public Policy Panel — on whether they will ask for a review by the full 8th Circuit or the U.S. Supreme Court. The groups, represented by the ACLU, said the state’s redrawn voting districts discriminated against Black voters. Their suit also suggested five new Black-majority districts be drawn to correspond with the Black population.
What makes this decision so potentially devastating is that for more than a decade, the Supreme Court, with the help of conservative judges on the lower courts, has been dismantling the Voting Rights Act’s historic legacy of ending racial discrimination in voting and elections.
In Shelby County v. Holder a decade ago, the Supreme Court gutted Section 5 of the VRA, the provision that required certain states to get the Justice Department’s approval before changing voting laws. That decision opened the gates to voter suppression laws in the old Confederacy and other states.
Since then, the VRA’s Section 2 has provided the main legal avenue for those seeking to ensure fair and nondiscriminatory elections, especially in redistricting cases. Yet, two Supreme Court decisions, in 2019 and 2021, further weakened the ability of Section 2 to protect citizens’ voting rights.
In Brnovich v. Democratic National Committee two years ago. Justice Neal Gorsuch invited lower courts to entertain the idea that there is no private cause of action explicit in the VRA provision. Gorsuch noted that “our cases assumed — without deciding” that the VRA allows citizens to sue to enforce the law.
Two of the 8th Circuit judges ran with that idea and decided, since Congress didn’t explicitly say citizens can seek enforcement of the VRA, only the Justice Department can enforce the law.
Lavenski Smith, the 8th Circuit’s first Black chief judge, disagreed with his colleagues’ conclusions. The circuit court has decided many cases brought by private actors, he wrote. He also noted that historically, only 15 of 182 successful Section 2 cases had been brought by the attorney general alone.
“Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection,” Smith wrote in his dissent.
As recently as this June, the Supreme Court took for granted citizens’ right to pursue enforcement when it ruled in favor of Alabama plaintiffs in a redistricting suit not unlike the Arkansas case.
And despite the 8th Circuit decision, at least three other federal appeals courts — the 5th, 6th and 11th circuits — have upheld the precedent for a private right of action, according to Democracy Docket’s analysis of the Arkansas ruling.
Still, the decision in the Arkansas case remains “a travesty for democracy,” said Sophia Lin Lakin, director of the ACLU’s Voting Rights Project.
“By failing to reverse the district court’s radical decision, the Eighth Circuit has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for,” Lakin said in an ACLU press release.
Arkansas ACLU Executive Director Holly Dickson said the ruling “undermines the Voting Rights Act’s promise of equal participation in the democratic process for all Americans.”
The threat to the promise of equality is not an overstatement. Despite the decades of precedent and the recent Alabama ruling, can we count on the current Supreme Court justices or Congress to uphold the right of citizens to sue their government for redress of grievances?
Arkansas Advocate is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Arkansas Advocate maintains editorial independence. This article was published with permission from the Arkansas Advocate. Contact Editor Sonny Albarado for questions: [email protected]. Follow Arkansas Advocate on Facebook and Twitter.