The Voting Rights Act passed in 1965, and for the next 48 years, it didn’t just survive, it thrived. Five times during that time span, Congress enacted major amendments that greatly expanded the scope and coverage of the law’s provisions. But during the last decade, one of the most important pieces of legislation in our country’s history has been battered to the point that it’s now on life support.
A federal judge has undercut one of the few remaining enforcement mechanisms the VRA has left.
The latest assault came Thursday, when a federal judge undercut one of the few remaining enforcement mechanisms the Voting Rights Act has left. Two nonprofits, the Arkansas NAACP and the Arkansas Public Policy Panel, filed a lawsuit under Section 2 of the VRA, alleging that the state’s newly drawn state House districts dilute Black voting strength. The groups requested a preliminary injunction against the map being put into place and asked the court to order the state to create a new map that conformed to federal law.
Section 2, as MSNBC columnist Jessica Levinson wrote in July, is “all that is left of the Voting Rights Act's once powerful enforcement mechanism.” That section, she wrote, “creates a national prohibition against ‘voting practices or procedures that discriminate on the basis of race, color’ or membership in a protected language minority group. Significantly, Section 2 puts the burdens on groups or individuals to show a violation of the act.”
U.S. District Judge Lee Rudofsky in his opinion said that “there is a strong merits case that at least some of the challenged districts” are unlawful under Section 2. But the lawsuit won’t get that far because Rudofsky ruled that such a lawsuit “may be brought only by the Attorney General of the United States.” In doing so, he potentially undercut dozens of similar suits in litigation around the country ahead of this November’s elections.
Until now, when confronted with the question of whether private groups could use Section 2 of the Voting Rights Act to seek relief, the answer from courts has either been a firm yes or an assumption that they could. But since neither the Supreme Court nor the Eighth Circuit have ruled definitively on the question, Rudofsky wrote, the matter isn’t settled law. And in his view, Congress put nothing into the Voting Rights Act that says that it can be considered privately enforceable.
It’s worth noting that Rudofsky didn’t reach this conclusion on his own. He followed a roadmap drawn during the Supreme Court’s Brnovich v. Democratic National Committee decision last year. That ruling diluted the scope of Section 2, laying out guidelines for evaluating future cases. But Justice Neil Gorsuch wrote separately to say that the Supreme Court hadn’t ruled on the issue and that lower courts “have treated this issue as an open question.” Rudofsky seized upon that question in this case, while insisting that it was Congress’ fault for not putting an explicit right to private action into the act.
This is very bad news for any potential appeal. In opening the door to bar private groups from suing under Section 2, Rudofsky, who was appointed to the bench by former President Donald Trump, has given the conservative wing of the Supreme Court the opening that his fellow Federalist Society member Gorsuch all but requested. And given how the court just opted to leave Alabama’s congressional map in place despite it likely violating Section 2, there’s little hope that the justices will do anything other than render Section 2 virtually meaningless.
The Department of Justice has already had a hard time finding the resources to prosecute cases under Section 2, given the burden it places on plaintiffs to prove that a law is discriminatory. If this ruling is allowed to stand, it will mean that the federal government will be the only entity nationwide with the standing to challenge Voting Rights Act violations. Already Rudofsky has said he’ll dismiss the Arkansas case unless the Justice Department joins as a plaintiff by Tuesday. This also means that if a Republican-appointed attorney general declines to pursue a violation, there’s nobody who could bring a case.
It’s almost shocking how quickly this landmark law has been unraveled.
It’s almost shocking how quickly this landmark law has been unraveled. First Shelby County v. Holder nullified the Section 4 formula the Justice Department used to determine which states needed preclearance to change their election laws under Section 5. Congress was given the chance to rewrite the provision — something that Republicans have blocked ever since, leaving Section 5 toothless. But Section 2 suits would allow the Voting Rights Act to remain enforceable, the court insisted.
Now, Section 2 is hanging on by a thread, threatening to reduce the Voting Rights Act to a little more than a strongly worded letter declaring that racism has no place in elections. The Senate has the chance to reverse the past 10 years of damage done with the John Lewis Voting Rights Advancement Act. But thanks to the filibuster, it’s unlikely that the Senate will do so before the Supreme Court snips away the last remaining protections the law provides.
