On The Trail: Arkansas case poses new threat to Voting Rights Act

A U.S. federal district court judge’s move this week to dismiss a challenge to new legislative district lines in Arkansas has opened a new front in the legal war over the Voting Rights Act, one that redistricting reformers worry may cut down the rights of minority voters to contest district lines that diminish their voices.

In a 42-page decision Thursday, U.S. District Court Judge Lee Rudofsky said he would dismiss a suit brought by the Arkansas Public Policy Panel and the Arkansas chapter of the NAACP, which challenges legislative district maps approved by the Republican-controlled legislature that would divide some minority communities in and around Little Rock, unless the U.S. Justice Department joined the case as a plaintiff.

Rudofsky’s reasoning: “[T]he Court has concluded that this case may be brought only by the Attorney General of the United States.”

In other words, Rudofsky, a Trump appointee, said the two groups that brought suit on behalf of their members, Black voters whose political power would be diminished by the new maps, did not have the standing needed to bring a challenge under Section 2 of the Voting Rights Act. Because of the way the Voting Rights Act is written, he said, only the federal Justice Department has the standing to bring a Section 2 case.

The case is not the first time that conservative lawyers have raised the argument that private entities do not have the standing to bring Section 2 challenges to political district maps. But it is the first time that such an argument has succeeded.

“It’s a wild argument, but in a world where courts may be willing to entertain wild arguments,” said Michael Li, senior counsel for the Brennan Center for Justice at New York University School of Law. “People are clearly gunning for the Voting Rights Act and they will see what courts will sign off on.”

Rudofsky’s decision is the work of but one judge in but one case, certain to be scrutinized by the 8th Circuit Court of Appeals and perhaps by the Supreme Court itself.

But it opens a door to a wholesale change to decades of precedent that allowed private entities to challenge redistricting maps on Section 2 groups. Without that right, responsibility for enforcing the Voting Rights Act would fall almost entirely to the Justice Department, and the whims of senior leadership appointed by the president.

“It would place all of the burden of enforcing the VRA on the Justice Department, which would stretch its resources,” Li said. “Most VRA lawsuits are brought by private plaintiffs, and you would be totally dependent on the Justice Department being willing to intervene in a particular situation, which they might not do for resource reasons or they might not do for political reasons.”

If the question of standing to bring Section 2 cases does reach the Supreme Court, at least two justices have already signaled they are open to Rudofsky’s view.

In a 2021 decision in Brnovich v. Democratic National Committee, Justice Neil Gorsuch wrote in a concurring opinion that the rights of a private organization to bring a Section 2 case was “an open question.” Justice Clarence Thomas joined Gorsuch’s opinion.

“It is important because it is one of the first opinions to really wrestle with the question that Justice Gorsuch raised,” said Jason Torchinsky, a Republican election law expert. “If it holds up on appeal, it will increase [the Justice Department’s] role and make certain redistricting and voting cases that invoke Section 2 as grounds much harder.”

The four remaining justices on the Court’s conservative wing have not raised similar questions. But Chief Justice John Roberts has been the principal author of several opinions weakening the Voting Rights Act in recent years, starting with a 2013 decision that effectively gutted Section 5, which required states with a history of racial discrimination to win approval from the Justice Department before making changes to voting rules.

Section 2, the provision that allowed legal challenges to discriminatory election procedures after they have been enacted, was left as the fall-back plan.

But last year, the six-justice conservative wing voted to undermine that provision too, in the Brnovich case. In that instance, Justice Samuel Alito, writing for the majority, upheld two Arizona measures that restricted ballot collection and out-of-precinct voting, which a lower court had found disproportionately discriminated against minority voters.

Proponents of stronger enforcement of the Voting Rights Act said they did not believe Rudofsky’s decision would survive through subsequent appeals — and Rudofsky himself acknowledged his relatively low standing in the judicial pecking order.

“[T]he private-right-of-action question is an important one. This Court will not be the last word on it. And this Court is thankful for that,” Rudofsky wrote. “Judges should not be allergic to acknowledging that any one of our legal conclusions might be wrong. Judges are just humans in robes. We try to have as high a batting average as possible, but no one can get it right all of the time.”

Even if Rudofsky’s reasoning does not survive, his decision opens the door for judges — and eventually justices — to reconsider the Voting Rights Act’s last remaining bulwark against discrimination in voting procedures.

“They are throwing everything against the wall to see what sticks,” said Rick Hasen, an election law expert at the University of California-Irvine. “[The] most likely outcome is a significant weakening of Section 2 without actually embracing these bonkers theories.”

On The Trail is a reported column by Reid Wilson, primarily focused on the 2022 midterms.