Federal judge rules that only U.S. attorney general, not private groups or individuals, can bring suits under the 1965 law
♦By Rich Shumate, ChickenFriedPolitics.com editor
LITTLE ROCK (CFP) — Can private groups and individuals who believe their electoral prospects are harmed by new political maps bring suit in federal court under the Voting Rights Act?
For more than 50 years, the answer to that question has been yes. But a federal judge in Arkansas has come down on the other side, saying that only the U.S. attorney general, not private parties, can bring lawsuits under the act.
The decision drew strong rebukes from voting rights advocates, who say that line of reasoning would drastically undercut the ability of minority voters to seek redress in federal court.
“It is farcical to think the [Voting Rights Act] could be consistently enforced without citizens having the right to bring suit to protect their voting rights,” said the Arkansas Public Policy Panel, one of the plaintiffs in the case, in a statement.
“The Court ruling would create a reality where state or local governments can violate voting rights … but citizens must wait and hope the federal government has the capacity and desire to intervene to enforce those rights.”
While the Biden administration has pledged to be active in pursuing voting rights cases, the record of the Trump Justice Department illustrates how lack of such desire might affect plaintiffs — in four years, it brought just one such suit, over selection of a school board in a South Dakota district with a large native population.
The decision by U.S. District Judge Lee Rudofsky – a member of the conservative Federalist Society appointed to the federal bench by Donald Trump – tees up a case that conservatives on the U.S. Supreme Court could use to drastically limit lawsuits under the Voting Rights Act.
At least two Supreme Court justices, Neil Gorsuch and Clarence Thomas, have already signaled in another case that they are sympathetic to Rudofsky’s interpretation of who can bring lawsuits under the Voting Rights Act, which overturns the rationale in a 1969 Supreme Court decision that has governed voting rights cases for more than 50 years.
The Justice Department declined Rudofsky’s invitation to step into the case, prompting the plaintiffs to appeal to the Eighth U.S. Circuit Court of Appeals, which could set the case on a path to the Supreme Court.
The Arkansas lawsuit centers around a new map for state House seats crafted by Republicans in the legislature, which has 11 majority black districts out of 100, in a state where the black population is 16%.
The plaintiffs – the Arkansas NAACP and the Arkansas Public Policy Panel – contend that the map violates Section 2 of the Voting Rights Act because legislators could have drawn 16 geographically compact, majority black districts.
Plaintiffs in Section 2 lawsuits don’t have to prove discrimination was intentional, just that the map creates a discriminatory effect.
In his decision, Rudofsky said “there is a strong merits case that at least some of the challenged districts … are unlawful.” But he said he could not make that determination because the language of Section 2, as drafted by Congress, gives only the U.S. attorney general the right to litigate violations.
“The question is not whether the Court believes the Voting Rights Act has been and continues to be a force for good and progress in our society. (I do.) The question is not whether the Court believes that in the last 57 years Congress should have included a private right of action in the Voting Rights Act. (I do.) The question is not whether the Court believes cases like this one are important to pursue. (I do.)
“The narrow question before the Court is whether, under current Supreme Court precedent, a court should imply a private right of action to enforce [Section 2] of the Voting Rights Act where Congress has not expressly provided one. The answer to this narrow question is no. Only the Attorney General of the United States can bring a case like this one.”
But Rudofsky also said he would welcome an appeal by the plaintiffs because the “private-right-of-action question is an important one” and “this Court will not be the last word on it.”
“Judges should not be allergic to acknowledging that any one of our legal conclusions might be wrong,” he said. “If the strength of plaintiff’s private-right-of-action arguments is really as overwhelming as they suggest it is, then the Eighth Circuit or the Supreme Court will overrule [this] decision.”
In 1969, the U.S. Supreme Court, in the case of Allen vs. State Board of Elections, ruled that a private right of action was implied in Voting Rights Act cases brought under another section of the law.
But Rudofsky said later Supreme Court decisions have changed the standard used to determine private-right-of-action cases, rendering the Allen case inapplicable.
Rudofsky also noted that private groups and individuals can still bring suits in federal courts challenging maps on 14th and 15th Amendment grounds, without turning to the Voting Rights Act.