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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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