Groups want full federal appeals court to revisit ruling limiting scope of the Voting Rights Act

By Andrew Demillo and Ayanna Alexander

On December 11, 2023

LITTLE ROCK, Ark. (AP) — Progressive advocacy groups in Arkansas on Monday asked a full federal appeals court to reconsider a three-judge panel’s ruling that private groups can’t sue under a key section of the federal Voting Rights Act.

The Arkansas Public Policy Panel and the Arkansas State Conference NAACP asked for the case to go before the full 8th U.S. Circuit Court of Appeals after a panel ruled 2-1 last month that only the U.S. attorney general can enforce Section 2 of the Voting Rights Act.

The groups, which are challenging Arkansas’ new state House districts under the law, told reporters in a conference call that the ruling reverses decades of precedent and would remove a key tool for voters to stand up for their rights if it’s not reversed. It also would put future challenges at the whims of partisan politics, since the president nominates the attorney general.

“By jeopardizing private parties’ ability to enforce the act, the panel decision threatens to make the promise of the Voting Rights Act hollow and should not be allowed to stand,” said Sophia Lin Lakin, director of the Voting Rights Project at the American Civil Liberties Union, which is representing the groups in the case.

Section 2 of the Voting Rights Act requires political maps to include districts where minority populations’ preferred candidates can win elections. Lawsuits have long been brought under the section to try to ensure that Black voters have adequate political representation in places with a long history of racism, including many Southern states.

Earlier this year, for example, the U.S. Supreme Court ordered Alabama’s congressional map redrawn to boost representation for Black voters in a case brought by private individuals and groups.

“I just want to make sure that we are able to speak up, speak out and give those people voices that they need on what’s going on in our community,” Barry Jefferson, president of the Arkansas State Conference of the NAACP, said. “Their votes are their voice.”

The groups said in their request Monday that last month’s ruling conflicts with all three other appeals courts that have ruled on the issue. It noted that Congress has repeatedly reauthorized the Voting Rights Act without questioning the privately enforced cases.

“If the panel decision is left undisturbed, this vitally important statute will mean different things in different parts of the country,” the filing said.

In a statement Monday, Arkansas Attorney General Tim Griffin, a Republican, called the appeals panel’s decision “well-reasoned” and said it correctly explained why only the federal government could bring lawsuits under Section 2.

“I will continue to vigorously defend the Arkansas Board of Apportionment in this case,” Griffin said, referring to the three-member panel that draws the state’s legislative districts. The board includes the governor, attorney general and secretary of state.

The 8th Circuit ruling applies only to federal courts covered by the district, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

The groups’ request comes as Louisiana is asking the 5th U.S. Circuit Court of Appeals to reconsider a different conclusion from one of its three-judge panels, which rejected the argument that there is no private right to sue under the Voting Rights Act. Ruling in a Louisiana congressional redistricting case, the 5th Circuit panel said the U.S. Supreme Court so far has upheld the right of private litigants to bring lawsuits alleging violations of Section 2, as have other circuit appellate courts.

Citing the Arkansas case, Alabama and 12 other Republican states last week asked the full 5th Circuit court to reconsider the panel decision.

“Section 2 contains no express private right of action,” the filing said. “And the VRA’s structure confirms that the provision creates no implied private right of action either.”

All but one of the 8th Circuit’s active appeals judges were appointed by Republican presidents, but advocates said they remain hopeful that the court would reverse the panel’s decision in the Arkansas case.

“At the end of the day, this is a decision of two judges out of a circuit with 11 active judges, and eight judges have yet to have their say,” Lakin said.

The groups are challenging Arkansas’ state House redistricting plan, which was approved in 2021 by the all-Republican state Board of Apportionment.

The redistricting plan created 11 majority-Black districts, which the groups challenging the map argued was too few. They argued the state could have drawn 16 majority-Black districts to more closely mirror the state’s Black population. Republicans hold a majority in both chambers of the Legislature.

“This is upside down and it denies fair representation to every Arkansan and laws that are passed here,” ACLU of Arkansas Executive Director Holly Dickson said. “It has an impact across the nation.”

This piece was republished from the Associated Press.