A new federal court opinion in an Arkansas case that would restrict who can sue under the 1965 Voting Rights Act is one of the most alarming attacks on the law in recent years.
It would effectively prohibit most efforts to protect Black people’s access to the ballot box and continue the long assault on multiracial democracy.
A three-judge panel from the 8th Circuit Court of Appeals concluded in an Arkansas redistricting case last week that private plaintiffs — including civil rights groups — can’t sue under Section 2 of the landmark Voting Rights Act; only the U.S. Department of Justice has that authority.
“This situation is heartbreaking,” Barry Jefferson, the political action chair of the Arkansas State Conference of the NAACP, told Capital B, describing the overall mood among Black Arkansans. “We work hard to speak on behalf of people who don’t usually have a voice — but this court wants to turn back the clock to a time when our voices weren’t heard at all.”
In 2021, the Arkansas State Conference of the NAACP and the Arkansas Public Policy Panel sued the state, alleging that its House map weakens Black voters’ ability to elect someone who might help them address issues ranging from food insecurity to meager health care access.
Private plaintiffs have a decades-old track record of not merely filing but also winning legal challenges to racially discriminatory voting policies. The resource-limited DOJ doesn’t.
Of the at least 182 successful cases that have been brought under Section 2 of the Voting Rights Act over the past 40 years, just 15 have been brought solely by the DOJ, per data collected by the University of Michigan Law School.
The 8th Circuit’s ruling covers seven states: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. But already, it’s inspiring political actors in other jurisdictions. Louisiana has asked that the ultra-conservative Fifth Circuit, which also covers Mississippi and Texas, apply the decision to the state’s own redistricting skirmish.
This latest threat to voting rights isn’t necessarily surprising — but it’s still dangerous. We can already see the ripple effects.
Read on to learn how we got here and how advocates are prepping for a longer battle.
Why are civil rights groups worried about the ruling?
The panel’s conclusion that private plaintiffs can’t sue under Section 2 is a radical break with a legal practice that for decades has protected Black Americans’ right to vote free of racial discrimination.
To understand this practice, let’s rewind to the height of the Civil Rights Movement.
President Lyndon B. Johnson signed the Voting Rights Act into law to quash minority voter disenfranchisement in the South and other parts of the country. Congress understood that the law would need backstops so that enforcement wouldn’t hinge purely on whether Democrats or Republicans were in control.
One of those backstops: Section 5, which mandates that states with histories of racial discrimination receive federal approval before changing their voting or election procedures (more on this later). But Congress recognized that the DOJ might be in Republican hands and thus not always interested in enforcing the Voting Rights Act.
So another backstop was needed: Section 2, which provides an avenue to challenge states and jurisdictions using racially discriminatory voting policies. As election law experts point out, the overwhelming majority of these suits are brought not by the DOJ but rather by private attorneys with the resources to advocate for marginalized voters.
“To be very clear, Congress knew that it couldn’t rely on the federal government alone to enforce Section 2,” explained Melissa Murray, a law professor at New York University. “It’s unlikely that you’d have, I don’t know, the federal government under a Republican administration stepping in to sue Mississippi for some discriminatory voting policy.”
Notably, last week’s decision isn’t all that shocking. Two Supreme Court justices — Neil Gorsuch and Clarence Thomas — hinted at their embrace of this Section 2 interpretation in a 2021 voting rights case, Brnovich v. Democratic National Committee, and essentially invited conservative groups to litigate the matter.
Could the decision affect other parts of the country?
Two days after the 8th Circuit decision, Louisiana, which is involved in a legal battle over its congressional map, signaled that it wants the Fifth Circuit to consider whether the Voting Rights Act permits private enforcement: In 2022, voters and civil rights groups sued Louisiana, saying that its map is likely illegal. Though the state is 33% Black, only one of its six districts is majority Black. The case continues along a rambling path ahead of Louisiana’s 2024 congressional elections.
(In what could be another attack on the Voting Rights Act, the entire Fifth Circuit on Tuesday agreed to rehear a Galveston County redistricting case and determine whether Section 2 allows minority coalitions — coalitions of Black and Latino people, for instance — to bring vote-dilution claims.)
Read more: A New Report Card Evaluates Voting Maps in Every State. How Did Your State Do?
The 8th Circuit’s maneuvering cools some of the excitement that politics watchers felt earlier this year. The Supreme Court ruled in June that Alabama’s congressional map likely violates Section 2 and ordered the state to grant Black voters more political power.
“This situation just shows you where this country is right now. We have judges and lawmakers who want to silence people, who want to shut them down,” Jefferson said. “But this moment also brings light to why we can’t let up on this fight. We have to fight harder.”
Adrianne Shropshire, the executive director of BlackPAC, an independent organization that focuses on political engagement, echoed some of Jefferson’s concerns. She told Capital B that Republican leaders might try to defy the court and draw maps out of compliance, or they might attempt to run out the clock by dragging cases through the courts, as Louisiana seems to be doing.
“The assault on democracy is in full swing — even with the Supreme Court’s decision,” she said. “If Republican leaders are playing a tactical game here, they’re just trying to delay. All they need to do is make sure that no new maps show up before 2024.”
Have we seen attacks on voting rights before?
What’s especially unsettling about this recent assault on the Voting Rights Act is that the country has seen many like it before.
In 2021’s Brnovich v. Democratic National Committee, a Section 2 case, the Supreme Court upheld Arizona election policies that ban ballot collecting (or “harvesting”) and out-of-precinct voting and that disproportionately burden voters of color.
And remember Section 5? In 2013’s Shelby County v. Holder, the high court gutted the provision. Chief Justice John Roberts insisted in the majority opinion that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”
(The late Justice Ruth Bader Ginsburg countered in her dissent that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”)
These attacks — which fit into a much broader history of efforts to curtail Black political power that stretches all the way back to Reconstruction — are backlash-oriented, according to Murray.
The reason the conservative legal movement is so hell-bent on hobbling the Voting Rights Act, she noted, “is because it works, in the same way affirmative action worked and made people who had been thoroughly excluded a part of the middle class. It was probably the most effective social engineering experiment in dealing with the pernicious legacy of slavery.”
Since the issue is expected to go before the Supreme Court, Murray’s planning on counting votes. Gorsuch and Thomas have already indicated that they endorse the 8th Circuit’s Section 2 theory. And Roberts has been intent on limiting the reach of the Voting Rights Act for decades. That basically leaves the fate of one of the centerpieces of the Civil Rights Movement in the hands of Brett Kavanaugh and Amy Coney Barrett.
“It’s been nice knowing our multiracial democracy,” Murray said.
