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The original was posted on /r/keep_track by /u/rusticgorilla on 2023-12-11 17:23:21.

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Voting Rights Act

An 8th Circuit Court of Appeals panel ruled 2-1 last month that there is no private right of action under Section 2 of the Voting Rights Act (VRA). Practically, the ruling means that only the federal government—not private citizens or civil rights groups—can file lawsuits challenging discriminatory redistricting maps and voting laws.

  • The case, Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment, was brought by civil rights groups challenging Arkansas’ 2020 state House map that allegedly dilutes Black voting strength in violation of Section 2 of the VRA. “In the last decade, the Black population in Arkansas has grown,” the ACLU argued, “yet the Board of Apportionment failed to craft district lines that would allow these new voters to elect their candidates of choice…The Board of Apportionment should have drawn at least four additional Black-majority districts.”
  • U.S. District Court Judge Lee Rudofsky, a Trump appointee, dismissed the case last year after concluding—despite decades of case precedent—that “it would be inappropriate to imply a private right of action to enforce § 2 of the Voting Rights Act.”
  • The plaintiffs appealed to the 8th Circuit. Judge David Stras, another Trump appointee, joined by George W. Bush appointee Raymond Gruender, upheld Rudofsky’s dismissal. “For much of the last half-century, courts have assumed that § 2 is privately enforceable,” Stras wrote. “A deeper look has revealed that this assumption rests on flimsy footing.” He acknowledges that even the current conservative Supreme Court upheld Section 2 of the Voting Rights Act in Allen v. Milligan, which was brought by private plaintiffs to protect Black voters. Yet, in what election law expert Rick Hasan calls a “wooden, textualist analysis,” the majority reaches the opposite conclusion of every other circuit court in the nation (including the hyper-conservative 5th Circuit, which upheld a private right to action days earlier).
  • Chief Judge Lavenski Smith, a George W. Bush appointee and the only person of color on the 8th Circuit, dissented: “[The Supreme Court] has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under § 2. Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy. Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection. Resolution of whether § 2 affords private plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance.”
  • As a result, there is no right for private citizens to sue to enforce Section 2 of the VRA in the 8th Circuit’s jurisdiction, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Louisiana, currently fighting to delay a court order to draw a fair congressional map, hinted that it will ask the 5th Circuit to likewise limit claims under the VRA. Given the split between the circuits, the case will likely reach the U.S. Supreme Court.

The 5th Circuit ruled last week that Galveston County, Texas, does not have to implement fair districts ahead of the 2024 election—and called into question whether multiple minority groups can form a voting coalition. Civil rights groups brought the federal lawsuit against the county for diluting Black and Latino voting power by eliminating its sole, longstanding majority-minority Commissioners Court precinct.

  • Trump-appointed District Judge Jeffrey Brown ruled in favor of the plaintiffs, finding that “[t]he enacted map denies Black and Latino voters the equal opportunity to participate in the political process and the opportunity to elect a representative of their choice to the commissioners court.”
  • The county appealed to the 5th Circuit, which decided 11-6 last week to stay Judge Brown’s ruling (all six Trump appointees voted in favor of a stay; all Democratic appointees voted in opposition to a stay). The majority based its decision on two problematic premises: [1] that it is too close to the election to change maps (the Purcell Principle), and [2] that two or more separately protected minorities (e.g. Black and Hispanic voters) cannot submit a joint claim under Section 2 of the VRA.
  • Judge Stephen Higginson (an Obama appointee), writing for the dissent, pointed out that the only reason the case may not be resolved in time for the 2024 election is the majority’s own choice to issue a stay and schedule arguments far into the future. “[O]ur court’s stay,” Higgens writes, “compounded by two interrelated decisions we also take—revisiting settled, thirty-five year old precedent yet calendaring that re-argument six months in the future—creates the very problem the Supreme Court in Purcell told courts to avoid.” Furthermore, “it is settled law in [the 5th] circuit that nothing in the history or text of the Voting Rights Act prevents members of multiple-minority groups from filing a vote-dilution claim together,” the dissent continues.
  • On Friday, the plaintiffs filed an emergency request in the U.S. Supreme Court asking it to lift the 5th Circuit’s pause of the order requiring Galveston County to adopt new districts.

Congress

Meanwhile, Congress is struggling to reach a deal on aid for Ukraine in exchange for Republican demands related to immigration and border security. Talks reportedly broke down earlier this month when Democrats balked at the GOP’s insistence on policies that would “essentially close the border” and eliminate asylum for people with meritorious claims.

  • “Right now, it seems pretty clear that we’re making pretty big compromises and concessions and Republicans aren’t willing to meet us anywhere close to the middle,” said Sen. Chris Murphy (D-CT). GOP leaders seemed to confirm Murphy’s characterization last week, with Sen. John Cornyn (R-TX) saying it is “not a traditional negotiation, where we expect to come up with a bipartisan compromise on the border. This is a price that has to be paid in order to get the supplemental.”

Other reporting indicates that the biggest roadblock is a Republican demand to “provide the president new authority to shut down the asylum system at will,” a proposal that would give a future Republican president (possibly Trump himself) the power to control various avenues for immigration and refuge with no oversight.

Among other fears, Senate Democratic negotiators worried that those powers would allow for the revival of Title 42…About 2.8 million people were expelled under the policy, which expired earlier this year after first being implemented under former President Trump. Trump is reportedly planning to reinstate a version of Title 42 to shut off the processing of asylum claims at the US-Mexico border as part of a second t…

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