The roots of the next potential U.S. Supreme Court showdown that could further weaken the Voting Rights Act's protections against racial discrimination can be traced to a handful of sentences by Justice Neil Gorsuch.
In the summer of 2021, Gorsuch — the first Supreme Court appointee by former President Donald Trump — tacked a single-paragraph concurring opinion onto a major court ruling to "flag one thing."
The ruling was for a lawsuit about Section 2 of the Voting Rights Act.
And the "thing" Gorsuch wanted to flag was a question he said no one in the case had raised before the court: Who has the right to sue to try to enforce that key section of the landmark law?
For decades, private individuals and groups, who did not represent the federal government, have filed the majority of Section 2 lawsuits that have stopped state and local governments from minimizing the political power of people of color through the redrawing of voting maps and other steps in the elections process.
But that longstanding practice may be coming to an end.
Gorsuch's paragraph of a concurring opinion, which was joined by Justice Clarence Thomas, planted the seeds for an unusual argument that has emerged in an Arkansas redistricting case — that private individuals are not allowed to bring Section 2 lawsuits. And the case may soon find its way before the country's highest court.
"It keeps me up at night," says Doug Spencer, an associate professor of law at the University of Colorado, who tracks voting rights lawsuits and is concerned about the argument not to allow private individuals to sue under Section 2.
"If that process is taken off the table, then the protection of minority voting rights will be much weaker after that case than it was before," Spencer adds. "This is one important thread that could unravel what remains of the Voting Rights Act."
This unusual argument got a "strong" voting rights case thrown out of court
The Arkansas redistricting case before U.S. District Judge Lee Rudofsky was a "strong" one, the Trump appointee noted in the 2022 ruling released more than a half-year after Gorsuch's concurring opinion.
In the lawsuit, groups representing Black voters in Arkansas claim that Republican politicians on Arkansas' apportionment board had drawn a map of state House districts that dilutes the voting power of Black people, denying Black communities meaningful opportunities to elect representatives of their choice.
"From what the Court has seen thus far, there is a strong merits case that at least some of the challenged districts in the Board Plan are unlawful" under Section 2, Rudofsky's ruling said.
But Rudofsky decided the lawsuit had to be thrown out because of who brought the case.
The words of the Voting Rights Act do not include any explicit mention of private individuals when describing who enforces Section 2. Instead, Rudofsky's ruling said, "the text and structure strongly suggest that exclusive enforcement authority resides in the Attorney General of the United States."
Citing Gorsuch's paragraph that flagged whether private individuals can sue as an "open question" among lower federal courts, Rudofsky concluded that there was a "narrow question" to decide in this Arkansas case — "whether, under current Supreme Court precedent, a court should imply a private right of action to enforce [Section 2] of the Voting Rights Act where Congress has not expressly provided one."
"The answer to this narrow question is no. Only the Attorney General of the United States can bring a case like this one," said Rudofsky's ruling, which has been appealed to the 8th U.S. Circuit Court of Appeals. A ruling by a three-judge panel is expected soon.
But "everyone" has understood Congress intended for private individuals to sue
Rudofsky's interpretation of the Voting Rights Act, however, goes against decades of practice and common understanding within legal circles.
"I think it's an open question only in the sense that no court has ever felt compelled to expressly say that people whose voting rights have been violated can sue under Section 2 of the Voting Rights Act because everyone — and I do mean everyone — understood that that's what Congress meant," says Dan Tokaji, dean of the University of Wisconsin Law School, who has written about private individuals suing for violations of federal election laws.
Before Congress amended the Voting Rights Act with bipartisan support and then-President Ronald Reagan's sign-off in 1982, committees on Capitol Hill issued reports that spelled out lawmakers' intentions.
"It is intended that citizens have a private cause of action to enforce their rights under Section 2," the House Judiciary Committee's report said. Months later, the point was echoed when another report said that the Senate Judiciary Committee "reiterates the existence of the private right of action under Section 2, as has been clearly intended by Congress since 1965."
Still, Rudofsky's ruling dismissed the lawmakers' statements, writing in a footnote that congressional committee "reports—which are neither passed by Congress nor signed by the President—are not law."
"This is a way of interpreting laws that sometimes goes by the name of textualism. But a more accurate appellation would be literalism — if it doesn't literally say in the law that private individuals can sue when their voting rights have been violated, then they can't," Tokaji says. "The problem with that argument is that it conflicts with reality."
The reality is the Justice Department can't handle all Section 2 cases, the DOJ says
After ruling that only the U.S. attorney general, who heads the Justice Department, could bring the Arkansas case, Rudofsky gave the federal government five days to pick up the lawsuit before the judge formally threw out the case.
The Justice Department did not step up.
But in a court filing, it did tell the judge that the U.S. government believes private individuals do have the right to sue under Section 2. It also referred to an earlier statement the department filed to lay out its reasoning a few weeks before Rudofsky ruled.
"The limited federal resources available for Voting Rights Act enforcement reinforce the need for a private cause of action," the DOJ's statement said.
Pam Karlan — a professor at Stanford University Law School who, before stepping down last year, helped lead the department's Civil Rights Division as the principal deputy assistant attorney general appointed by President Biden — says beyond limited resources, there's also the challenge of the "sheer volume of jurisdictions in the United States that might face a Section 2 case."
"There are states, counties, school boards, water districts, city councils. I mean, there are just so many different governmental bodies that are subject to Section 2 that the idea that you'd have one body in the Justice Department as the sole enforcement mechanism makes no sense at all," says Karlan, who declined to comment on why the DOJ decided not to take on the Arkansas case.
A change in presidential administrations can also change the priority level of Section 2 cases at the Justice Department, warns Spencer, the associate law professor at the University of Colorado.
"If you're relying on that political institution to protect your right to vote, you may have years that go by when that right is not enforced in the courts, even though Congress created that right," Spencer says.
Section 2 of the Voting Rights Act is in danger at the Supreme Court in other ways
If the Arkansas lawsuit ultimately reaches the U.S. Supreme Court, it may join a list of cases that have resulted in a steady chipping away of Voting Rights Act protections by the conservative-majority court under Chief Justice John Roberts.
"The conservative majority of the current court knows that there's a different world of possibilities in terms of the direction of law, and they're reshaping actively, especially in the election law area," says Michael Kang, a professor at Northwestern University Pritzker School of Law, who wrote an online essay last year for the Stanford Law Review titled "The Post-Trump Rightward Lurch in Election Law."
After the court's 2013 decision in Shelby County v. Holder, which gutted another key section of the act, Section 2 remains as one of the last legs of the civil rights-era law. Many court watchers are holding their breath to see what's left of Section 2 after the court is expected to rule on another redistricting case — Merrill v. Milligan — by the end of its current term in June.
Kang sees the argument that private individuals do not have the right to sue under Section 2 as an example of Gorsuch "imagining a different possibility where we could close off opportunities for voting rights challenges under the current court."
Until Gorsuch's concurring opinion questioned that right, Kang adds, "even the most conservative legal thinkers weren't contemplating that federal courts would buy that argument."
Depending on how the courts rule in the Arkansas case, it could also mean different possibilities for state and local governments that are "hostile to racial minorities," Kang says. "To the degree that voting is racially polarized, Republican governments that want to cut back minority voting opportunities — there'll be a new world of possibilities for them to take advantage of. It'd be really hard to challenge a lot of what they might do."
Edited by Ben Swasey
Research by Sarah Knight and Brin Winterbottom
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