Civil rights organizations are asking the full 8th U.S. Circuit Court of Appeals to review a ruling by a three-judge panel that threatens to make it harder to enforce the Voting Rights Act's protections against racial discrimination in the election process.
The court filing released Monday by attorneys led by the American Civil Liberties Union marks another step in a case that could become the next U.S. Supreme Court showdown that further weakens the landmark law.
The panel's ruling upheld a lower court decision that found that private individuals and groups — who, for decades, have brought the majority of lawsuits under Section 2 of the Voting Rights Act — do not have the right to sue because they are not explicitly named in the law.
That decision came out of a redistricting lawsuit filed by the Arkansas State Conference NAACP and the Arkansas Public Policy Panel, which challenged Arkansas' state House map.
The groups argued that the legislative redistricting plan approved by Republican politicians violates Section 2 by diluting the collective voting power of Black people in Arkansas, where 16.5% of the state's population is Black.
Only 11 out of Arkansas' 100 state House districts, however, are majority-Black districts, where Black voters have a realistic opportunity to elect their preferred representative.
The final outcome of this redistricting case is not expected to affect the 2024 elections for Arkansas' state House, as the filing deadline for next year's candidates passed last month.
But if this dispute over what's known as the private right of action reaches the Supreme Court — where conservative Justices Neil Gorsuch and Clarence Thomas have signaled interest in hearing such a case — it could end up limiting the enforcement of Section 2 protections nationwide to the discretion of the head of the Justice Department, where legal resources and the political will of a presidential administration can be limited.
"We will not stand by as this threat is not only happening in Arkansas, but across the country," Dominik Whitehead, vice president of campaigns at the NAACP, said Monday at a press conference, calling the ruling a "clear attack" on U.S. democracy, voting rights and people of color. "It's continuing to attack Black folks and making sure they do not have fair representation."
This 8th Circuit panel's ruling is having ripple effects
The panel's ruling, which strikes down the private right of action under Section 2, only applies to the seven states in the 8th Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
Two weeks after the ruling's release, Republican officials in North Dakota cited the ruling in an effort to defend an election map that was approved by the state's Republican-controlled legislature. Last month, a federal judge struck down that map for diluting the collective power of Native American voters in violation of Section 2. The lawsuit was brought by the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe and individual Native American voters.
And outside of the 8th Circuit, Republican officials in other states are now trying to extend the ruling's influence to ongoing redistricting fights around the country.
GOP state officials in Louisiana are pointing to the ruling in their request for the full 5th Circuit to review a congressional redistricting lawsuit brought by Black voters, who are challenging a map that a lower court found is likely to dilute the power of Black Louisianans.
In a friend-of-the-court brief for that case, more than a dozen Republican state attorneys general in Alabama, Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Mississippi, Montana, Nebraska, South Carolina, Texas and West Virginia argue against a private right of action.
But last month, a 5th Circuit panel concluded that, as private individuals, the Black voters do have a right to sue under Section 2.
Edited by Benjamin Swasey
