An appeals court has struck down a key path for enforcing the Voting Rights Act

Hansi Lo Wang

November 20, 2023 / 8:21 am

caption: Demonstrators hold up large cut-out letters spelling "VOTING RIGHTS" at a 2021 rally outside the U.S. Supreme Court in Washington, D.C.

Updated November 20, 2023 at 12:16 PM ET

A federal appeals court has struck down a key path for enforcing the Voting Rights Act.

The new ruling in an Arkansas redistricting lawsuit may set up the next U.S. Supreme Court fight that could further limit the reach of the Voting Rights Act's protections for people of color.

The legal dispute is focused on who is allowed to sue to try to enforce key provisions under Section 2 of the landmark civil rights law, which was first passed in 1965.

Private individuals and groups, who did not represent the U.S. government, have for decades brought the majority of Section 2 cases to court. Those cases have challenged the redrawing of voting maps and other steps in the elections process with claims that the voting power of people of color has been minimized.

U.S. District Judge Lee Rudofsky, an appointee of former President Donald Trump, ruled in February 2022, however, that only the head of the Justice Department, the U.S. attorney general, can bring Section 2 lawsuits and dismissed an Arkansas redistricting case brought by advocacy groups representing Black voters in the state.

On Monday, that lower court ruling was upheld in a 2-1 vote by a three-judge panel of the 8th U.S. Circuit Court of Appeals.

"For much of the last half-century, courts have assumed that [Section 2] is privately enforceable. A deeper look has revealed that this assumption rests on flimsy footing," wrote Circuit Judge David Stras, a Trump appointee, in the majority opinion joined by Judge Raymond Gruender, an appointee of former President George W. Bush.

Chief Circuit Judge Lavenski Smith, another Bush appointee, dissented.

"Until the [Supreme] Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy. 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.

The full 8th Circuit Court could be asked to review the panel's decision. Ultimately, many legal watchers say this Arkansas case may be appealed to the Supreme Court.

This latest ruling comes after the Arkansas State Conference NAACP and the Arkansas Public Policy Panel filed a Section 2 lawsuit over Arkansas' state House map, arguing that it dilutes the voting power of Black people. According to the 2020 census, 16.5% of the state's population is Black. But only 11 out of Arkansas' 100 state House districts in the redistricting plan drawn by Republican politicians are majority-Black districts, where Black voters have a reasonable chance of electing a representative of their choice.

In the trial court ruling dismissing the case, Rudofsky noted "there is a strong merits case that at least some of the challenged districts" in the GOP politicians' plan are "unlawful" under Section 2.

Attorneys for the Arkansas State Conference NAACP and the Arkansas Public Policy Panel have said they're prepared to use another route for continuing this lawsuit under a federal statute known as Section 1983, which allows people to sue state government officials when their civil rights under federal law are violated.

In a ruling for a closely watched Alabama congressional redistricting case, a majority of the Supreme Court justices reaffirmed the court's earlier rulings on how Section 2 of the Voting Rights Act prohibits racial gerrymandering in crafting political districts.