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Decision in Arkansas case could limit lawsuits under Voting Rights Act

Federal judge rules that only U.S. attorney general, not private groups or individuals, can bring suits under the 1965 law

♦By Rich Shumate, editor

ArkansasLITTLE 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.

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Sound and Fury: Will Joe Biden and Kamala Harris’s impassioned speeches impact voting rights results?

White House chooses historic, symbolic setting in Atlanta to draw line in the sand with Republicans, Democrats hesitant about changing filibuster

♦By Rich Shumate, editor

GeorgiaATLANTA (CFP) — The setting was both symbolic and historic. To promote their push for federal voting rights legislation in the U.S. Senate, President Joe Biden and Vice President Kamala Harris chose Atlanta, the cradle of the civil rights movement, and spoke on the campus shared by three historically black colleges with a rich legacy of activism.

biden voting rights

President Joe Biden gives major address on voting rights in Atlanta (From YouTube)

Georgia is also the state where Republicans undertook a wholesale revision of state election laws after Biden carried the state in 2020 and Democrats flipped two U.S. Senate seats, based on claims of voting fraud for which no evidence has yet to emerge.

However, whether Biden and Harris’s dramatic exhortations will affect the outcome of the Senate vote in the coming days remains very much up in the air.

While that result could have impact nationwide, it will be of particular interest in three Southern states – Georgia, Florida and Texas – where Republicans control the political machinery and are striving to thwart any Democratic advance by reworking the rules to their advantage.

If the 50 Democrats in the Senate don’t unite to find a way around united Republican opposition to the bill, Democrats in Georgia fear their 2020 breakthrough will be short-lived, and the uphill task Democrats face in Texas and Florida will be even steeper.

The headline from Biden’s January 11 speech was his most full-throated endorsement yet of changing the Senate’s filibuster rule to advance the voting rights legislation on a simple majority vote.

Biden argued that if state legislatures, in the South and elsewhere, can pass laws restricting mail and in-person voting, ballot drop boxes, and even handing out food and water to voters stuck in long lines, then senators should be able to stop them with the same simple majority.

But U.S. senators, perhaps above all else, enjoy their perks and traditions, and the filibuster, which allows a small number of senators to thwart the will of a majority, is one of the most cherished.

In essence, it makes every senator a king, which can go to some of their heads.

From a small “d” democratic perspective, the filibuster is indefensible; indeed, no state legislature anywhere in the country operates this way.

But its supporters – currently led by Senate Republican leader Mitch McConnell of Kentucky – argue that it acts as a check on the untrammeled will of a majority.

Utah U.S. Senator Mitt Romney even advanced an argument to support the filibuster that is the stuff of Democratic nightmares — what if Donald Trump wins in 2024, Republicans control both houses of Congress, and Democrats have no tools to stop them from doing whatever they want?

Support for the filibuster is not just a Republican view – it is also held by some Democrats, including most notably, but not exclusively, by West Virginia U.S. Senator Joe Manchin. Until recently, it was held by Biden himself.

Manchin, who as a former secretary of state once oversaw elections in his home state, has expressed support for the underlying voting rights legislation. Indeed, the version the Senate is now considering, the Freedom to Vote Act, was written by Manchin as part of a quixotic quest to find a bipartisan way forward.

But Manchin has made it clear that even though he wrote the bill, he won’t blow up the filibuster to get it passed, and he wants any change in Senate rules to be made on a bipartisan basis, which McConnell has made clear isn’t going to happen.

Biden apparently believes that his Atlanta speech – which cast the senators’ filibuster vote not in institutional Senate terms but as a moral issue of right or wrong, justice or injustice – will change Manchin’s mind, even though the West Virginian has given little indication he’s receptive to that argument.

Biden and Harris drew a rhetorical line in the sand, with sharp language; Biden went so far as to liken opponents of moving forward with voting rights legislation to George Wallace and Jefferson Davis. The president and vice present took an unambiguous, firm stand that will no doubt please the Democratic base and voting rights activists, some of whom boycotted the speech to protest what they see as lack of action from the White House.

But the line having been drawn, it is also unclear what the next steps might be if Manchin and other Democrats balk at the filibuster reform needed to get the bills through. There can be political benefit in trying and failing; there’s much less political wisdom in trying something when there isn’t a clear way forward.

In his speech, Biden also castigated Republican senators for unanimously opposing this voting rights legislation, contrasting that position with the actions of Republican senators in the past (including Strom Thurmond) and Republican presidents who supported extensions of the Voting Rights Act.

Yet, that denies the reality that some Republican senators’ objections are not to voting rights per se but specific parts of this legislation, including limits on partisan gerrymandering, greater federal oversight of state elections, changes to campaign financing laws, and a fund to match donor contributions to political campaigns.

Opposing creation of a vehicle to lavish more money to the political grifter class, or defending the primacy of states in election administration as set out in the Constitution, does not make someone Bull Connor. Romney and Maine’s Susan Collins are not opposing this because they are power-mad racists bent on the destruction of democracy, and, one might argue, casting them as such isn’t likely to change their minds.

Democrats have a strong argument here that Republican efforts to change voting laws aren’t necessary because the rationale on which they are based – that the 2020 election was rife with fraud – is specious. It is also the case that the changes will make it more difficult for Democrats to win elections in Georgia, Florida, Texas and elsewhere, which Democrats should oppose out of plain common sense.

But the ultimate success of Biden and Harris’s sound and fury — casting the fight over this legislation as a black-or-white moral imperative and its opponents as maliciously misguided — is rather less clear.

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No end of a lesson: Democrats discover Virginia is not that “woke”

Why leftward lurch in Richmond was a misreading of the Old Dominion’s electorate, leading to Tuesday’s political catastrophe

♦By Rich Shumate, editor

VirginiaRICHMOND (CFP) — Heading into Tuesday’s elections in Virginia, the Republicans’ theory of the case was that they could ride a backlash against two years of total Democratic rule in Richmond back into power – that voters in the suburbs were mad as hell and not going to take it anymore.

The results, if anything, may have understated the case’s potency.

Before Tuesday, Democrats held all three statewide offices and majorities in the House of Delegates and Senate. Come January, all they will have left is a one-seat margin in the Senate, where a defection from a single Democratic senator will create a tie to be broken by the new Republican lieutenant governor, Winsome Sears.

In other words, every Virginia senator can play Joe Manchin – and Democratic senators hoping to win re-election in 2023 may find it in their political interests to cooperate with Governor-elect Glenn Youngkin.

Since the Democrats’ debacle in the Old Dominion, the chattering class has been busy theorizing that the inability of Democrats in Washington to push through President Joe Biden’s domestic spending agenda is to blame. But there is a deeper, much more local, reason for what happened.

Virginia is not nearly as “woke” as Democrats had convinced themselves that it was, and they are now paying the price.

In 2019, Democrats took control of all of the levers of power in Richmond for the first time in a quarter century – and they proceeded to go off on what can only be described as a liberal toot.

Marijuana legalized. Death penalty abolished. Police chokeholds and no knock warrants gone. Background checks for gun purchases imposed. LGBTQ discrimination protections enacted. Confederate monuments removed. Waiting periods and ultrasounds before abortions eliminated. Voting rules eased.

Inexplicably, they even reached back into the 1970s to dust off the Equal Rights Amendment and ratify it – a purely symbolic gesture that will have no actual impact on policy, as its ratification deadline expired nearly 30 years ago.

The one person who might have stopped this march to the left was Governor Ralph Northam, but he was busy hanging on to his job in the face a scandal over wearing blackface in medical school that caused many in his own party to abandon him. He firmly jumped on board the leftward train.

Democrats would no doubt argue that all of those reforms they enacted were necessary, even righteous. But Virginia is still, well, Virginia — a generally conservative place populated by conventional suburban people, many of whom didn’t take kindly to being governed as if they were living in Seattle.

Whether from hubris or cluelessness, Virginia Democrats fundamentally – and fatally — misread their electorate.

The most fiery issue in the recent campaign was critical race theory, which Youngkin vowed to eradicate from public schools, even though it is not being taught in any public school in the commonwealth.

Democrats denounced Youngkin’s crusade as factually unfounded, silly and racist. But what they didn’t understand was that critical race theory was actually shorthand proxy for another concern of many parents – that teachers and schools were delving, or preparing to delve, into discussions of race and sexuality in the classroom in pursuit of a more just, tolerant society.

On Tuesday, many of these parents made it clear that they do not believe those topics are appropriate in schools, even in pursuit of admirable ends. Full stop. And they were prepared to reward Youngkin for his opposition, couched as it was in criticism of critical race theory that is taught in graduate schools, not kindergartens.

Republicans have struck a nerve here that will echo into next year’s midterms; Democrats need to come up with a counternarrative, rather than simply dismissing this heartfelt sentiment as irrelevant or racist.

Virginia Democrats’ last rampart against Republican rule is their 21-member Senate caucus, all of whom are all up for election in 2023 in a political climate they now know to be unfavorable. Their number includes Joe Morrissey, a colorful, unpredictable lawmaker from Richmond who opposes legal abortion, and Chap Petersen, a moderate from Fairfax who supports gun rights.

In other words, not much of a rampart with which to go scorched earth on Youngkin.

The statewide offices are out of Democratic hands until at least 2026, which means any comeback will need to be in legislative races.

The bright spot for Democrats in this regard is that new House and Senate maps will be drawn before the next election in 2023. Because of population growth, more seats will need to be located in the Washington, D.C. suburbs, where Democrats dominate, shifting some power away from more Republican areas.

Given that Republicans only have a two-seat House majority, and Democrats a single-seat majority in the Senate, those new maps could have a significant impact on party legislative control. And because the newly created bipartisan redistricting commission has imploded, those maps are likely to be drawn by the state Supreme Court, where partisan gerrymandering will be limited.

But even if Virginia Democrats hold their own in 2023, the total control they enjoyed for the past two years won’t come back for at least the next four – and at that point, they might do well to remember Kipling’s admonition: “We have had no end of a lesson, it will do us no end of good.”

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Is demography destiny? Census data shows challenges ahead for Southern GOP

2020 figures show increases among voting groups that have been swinging to Democrats

By Rich Shumate, editor

CFP Red Blue Circle(CFP) — Take a map showing population shifts across the South over the last 10 years and put it over a map of where Joe Biden performed best in 2020, and the connection will appear obvious.

The counties in the South that have gained population — large cities and surrounding suburbs — are the same places where Biden did well; the counties that shrank — rural areas and small towns — were places where Donald Trump rolled.

2020 population growth

New, detailed, local-level data released August 12 by the U.S. Census Bureau show that when Republicans across the South redraw lines for congressional and legislative districts to equalize population, maximizing their partisan advantage will be much trickier than it was a decade ago.

True, Republicans will still control the entire process in every Southern state except Louisiana and Virginia, which will give them ample opportunity to draw favorable maps. But this slicing and dicing will still have to account for the fact that the sheer number of hostile voters is growing at such a pace that gerrymandering will become ever more difficult.

The geographic partisan divide reflects another shift that has negative implications for the GOP — the Southern electorate is becoming less white.

In every Southern state except for South Carolina and Tennessee, the percentage of the population that self-classifies as white dropped — in some cases, dramatically. In Texas, it dropped 17.5%; in Florida, 12%. There are now five Southern states — Texas, Florida, Georgia, Mississippi and Louisiana — where the white population is less than 60%, giving Democrats a base on which to build.

While the black population nationwide has been relatively stable since 2010, it grew faster than the national average in every Southern state except Kentucky, West Virginia and Oklahoma, as the reverse migration of African Americans back to the region continues.

The most notable population change in the 2020 census was among Hispanic residents, who grew nationwide by 23% and now make up nearly 19% of the total population. But every Southern state except Texas saw the Hispanic population grow even faster than the national average, making them a much more visible presence in areas where they have previous had little political impact.

For decades, the bedrock of Republican strength in the South has been white voters in rural areas, small towns and suburbs, offsetting Democrat strength among African American voters and inner-city urban voters. Maps featuring suburban-rural districts have thus been used to maximum effect.

However, the population shifts in the new census numbers will dictate that rural districts with shrinking populations will have to expand to include more suburban territory, at the same time that Southern suburbs are becoming less reliably Republican.

In Georgia, for example, three counties in the Atlanta urban-suburban core — Fulton, Gwinnett and Cobb — added 376,000 people over the last decade. Joe Biden carried all three, and Democrats have flipped two U.S. House seats here and gained a dozen state legislative seats. So can new lines be drawn to account for both the population boost and the political shift?

In Texas, eight counties added more than 200,000 each during the decade, a total of 2.5 million people combined, and all were in major metro areas — Dallas-Ft. Worth, Houston, San Antonio and Austin. By contrast, 144 counties lost population. So when legislators draw two new U.S. House districts, they will almost certainly have to be rooted in metro areas where Democrats have made gains.

This is not to suggest, of course, that Republican hegemony in the South is threatened in the short-term by these population shifts. Hispanic voters remain a relatively small part of the electorate outside of Florida and Texas, white voters are more monolithically Republican than in much of the rest of the country, and the suburbs remain competitive.

But amid unprecedented scrutiny of the map-making process — with activist groups ready to pounce on maps they feel are unfair — drawing new political lines that maximize Republican gains will be a fraught process.

The legal fight over Texas’s 2010 maps didn’t end until 2018. We can expect the same this time around, and probably in more places.

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Big Risk: Ron DeSantis and Greg Abbott double down on mandates despite unpredictability of COVID crisis

Will short-term gain for leading charge against COVID-19 restrictions backfire if cases surge in schools?

♦By Rich Shumate, editor

CFP Red Blue Circle(CFP) — A number of Southern Republican political leaders — most notably, Florida Governor Ron DeSantis and Texas Governor Greg Abbott — have decided to take a huge gamble; namely, to lead the charge against new COVID-19 restrictions, despite the Delta variant ripping across their states, filling up hospitals and stretching front-line workers to their breaking point.

It’s an experiment — literally — that is particularly risky given that one of the populations being experimented are hundreds of thousands of school children, whose parents cannot get them COVID-19 vaccinations even if they want to.


Governors Ron DeSantis of Florida and Greg Abbott of Texas

If DeSantis and Abbott are right — that all of the doomsaying and caterwauling by public health officials is an overblown overreaction — their gamble is likely to delight their base and pay dividends when they come up for re-election next year.

But if they are wrong — if busloads of children start getting sick or dying — these current prohibitive favorites could find themselves in electoral trouble. Which begs the question, is it worth the risk?

To see the possible pitfalls of this strategy, one need only look at the school district in Marion, Arkansas, where, after just the first week of classes in August, 900 students and staff were in quarantine.

That was enough to convince Republican Governor Asa Hutchinson that his decision back in April to sign into law a ban on mask mandates, pushed through by Republican lawmakers, was a mistake. It was not, however, enough to convince those lawmakers to reverse the mask ban when Hutchinson summoned them back to Little Rock for a special session to do so.

To be clear, neither DeSantis and Abbott are anti-vaxxers. On the other hand, they are not merely taking a personal political stand against mask and vaccine mandates — they are aggressively pushing back against local officials and even private businesses who want to put these measures into place themselves.

Two hallmarks of traditional conservatism are giving power to local officials to make decisions they think best for their communities (particularly school boards) and giving businesses free hand to run their enterprises as they see fit. Both have gone out the window amid a conservative backlash to mask and vaccine mandates, a wave which DeSantis and Abbott seem eager to ride.

DeSantis has gone so far as to oppose hospitals requiring staff on the front lines of the pandemic to get vaccinations, and he has gone to court to block cruise lines from requiring vaccinations for passengers, which the cruise companies desperately want.

Given the devastating outbreaks of COVID-19 among cruise ship passengers during the early days of the pandemic, cruise companies want to err on the side of caution; DeSantis is coming down instead on the side of an expansive sense of personal liberty, even at the expense of public health.

Both Abbott and DeSantis are responding to a part of their base that is skeptical of vaccines and vehemently opposed to mask mandates and lockdowns. Some of these people even argue that masks are harmful for children, an assertion not supported by any reputable medical research.

The irony, of course, if that if these people had gotten vaccinated, the COVID-19 might now be mostly over, eliminating the possibility of mandates or lockdowns.

It makes sense, with perverted logic, for people who believe COVID is a hoax to support dispensing with restrictions even though most people are still unvaccinated. But if the last 18 months have taught Abbott and DeSantis anything, it is surely that COVID isn’t a hoax.

Abbott is facing primary challengers who already complain that he’s taken too many COVID precautions, perhaps explaining why he’s so resistant to more. DeSantis is not yet being primaried on this issue, so taking a hard line here is perhaps a way to stopping a challenge from getting off the ground — not to mention helping him with a possible 2024 presidential run.

Still, a recent Florida polled showed DeSantis’s job approval under water, in a state where the last three governor’s races were decided by 1 point or less. Texas is more Republican but not out of reach for Democrats if the public comes to believe people have died needlessly under Abbott’s stewardship.

Two other facts call into question the wisdom of DeSantis and Abbott’s big risk.

First, the fallout from the COVID pandemic likely cost Donald Trump re-election, something even the former president has been willing to concede. So, perhaps this is a lesson to which more attention needs to be paid.

And second, COVID has proven to not only be tremendously deadly but highly unpredictable. So, climbing out on a political limb and hoping that the worst public health crisis in a century will turn out all right in the end would seem a dubious long-term strategy, even if the base lustily cheers in the short term.

However, for better or worse, both DeSantis and Abbott have embraced this risk. So in that bed they will now have to lie.

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