[A federal appeals court decision is so outlandish that the
Supreme Court will almost certainly reverse it.]
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THE NEWEST ATTACK ON THE VOTING RIGHTS ACT  
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Michael Li
November 21, 2023
Brennan Center for Justice
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_ A federal appeals court decision is so outlandish that the Supreme
Court will almost certainly reverse it. _

, Jim West / Alamy

 

It was only a matter of time before a new threat to the Voting Rights
Act appeared on the scene. A federal appeals court launched an
appalling attack on the landmark law on Monday. That’s the bad news.
The good news is that the decision is so unmoored from precedent that
even the current ultraconservative Supreme Court is almost certain to
reverse it.

In June, advocates were relieved when the Supreme Court upheld
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lower-court decision finding that Alabama’s congressional map
violated the Voting Rights Act.

That ruling was and is rightly celebrated as a huge win. Many had
feared that the Court’s new radical supermajority would use the
Alabama case as an opportunity to complete the work of carving away
what remained of the Voting Rights Act.

Instead, Chief Justice John Roberts wrote an opinion that reaffirmed
the vitality of the nearly 60-year-old statute. As a result, for the
first time in history, Alabama now has a second congressional district
where Black voters can elect their preferred candidate.

But few observers expected conservative forces to surrender, and they
haven’t. In fact, by all accounts, their actions since reflect an
even more emboldened and determined strategy.

On Monday, they drew blood when a divided panel of the U.S. Court of
Appeals for the Eighth Circuit ruled
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in a case challenging Arkansas’s legislative maps that only the U.S.
Justice Department — and never private citizens or citizen groups
— can bring lawsuits under Section 2 of the Voting Rights Act. (The
issue came up in the first instance in the case,_ Arkansas NAACP v.
Sanders_, only because a Trump-appointed lower court judge raised it
on his own initiative.)

The opinion has generated outrage for good reason: it is not just
wrong but shockingly so, radically out of step with the history of the
Voting Rights Act and decades-old practices.

Cases brought by individual voters have long accounted for the
overwhelming majority of Section 2 lawsuits. As Chief Judge Lavenski
R. Smith noted in his dissent in the Arkansas case, “Over the past
forty years, there have been at least 182 successful Section 2 cases;
of those 182 cases, only 15 were brought only by the Attorney General
[of the United States].” And of course, the Supreme Court just ruled
in June in favor of Black voters in Alabama without raising the
slightest suggestion that maybe, just maybe, the wrong parties were
bringing the case.

What’s more, Congress had full knowledge that individual voters were
bringing claims. Between 1965 and 2006, Congress amended or renewed
the Voting Rights Act five separate times. Not once did the fact that
voters were bringing claims under Section 2 raise alarms or become an
issue that Congress thought it needed to seriously debate. In fact,
Congress regularly included cases brought by individual voters in the
legislative record for renewals. Congress not only knew individual
voters were bringing claims, it cited the practice with approval.

Under the unmoored theory adopted by the Eighth Circuit panel, voters
of color facing a discriminatory law could only urge the Justice
Department to take action. If the resource-constrained (and sometimes
highly politicized) department declined to bring a case, minority
voters would be out of luck.

The result would be catastrophic. Section 2 suits by “private
attorneys general” have been essential to achieving fair
representation and fair voting election practices at every level of
government. Take Ferguson, Missouri. Before a suit by Black voters,
the local school board in an increasingly diverse but troubled
community had been nearly all white. As a result of changes, Black
members are now a majority of the board. That result was possible
because individual voters could bring Section 2 claims. Similarly,
discriminatory voter ID laws in North Carolina and Texas have been
struck down due to Section 2 lawsuits by individual voters. The list
goes on and on.

Simply put, if the Arkansas opinion were to somehow become the law of
the land, the Voting Rights Act would effectively cease to be a
practical enforcement tool for much of the country.

But while the latest threat is real, there’s reason to remain
optimistic. The Eighth Circuit opinion is not unanimous and is very
poorly reasoned. There’s good cause to think it will be overturned,
perhaps even quickly. That could come from the Supreme Court or
perhaps the Eighth Circuit itself if the court decides to revisit the
three-judge panel’s decision with all of its judges sitting.

Nevertheless, the fact that the decision even exists is a timely
reminder that the assaults on the Voting Rights Act, like the
discriminatory policies that the law addresses, are far from over. The
sad reality is that a law heralded as the single most effective civil
rights legislation in American history continues to be viewed by many
not as a guarantee of equality but as a threat.

The need for Congress to renew, strengthen, and adapt the Voting
Rights Act continues to be as urgent as ever.

_MICHAEL LI serves as senior counsel for the Brennan Center’s
Democracy Program, where his work focuses on redistricting, voting
rights, and elections. Prior to joining the Brennan Center, Li
practiced law at Baker Botts L.L.P. in Dallas for ten years. He was
the author of a widely cited blog on redistricting and election law
issues that the New York Times called “indispensable.” He is a
regular writer and commentator on election law issues, appearing on
PBS Newshour, MSNBC, and NPR, and in print in the New York
Times, Los Angeles Times, USA Today, Roll Call, Vox, National
Journal, Texas Tribune, Dallas Morning News, and San Antonio
Express-News, among others._

_In addition to his election law work, Li previously served as
executive director of Be One Texas, a donor alliance that oversaw
strategic and targeted investments in nonprofit organizations working
to increase voter participation and engagement in historically
disadvantaged African American and Hispanic communities in Texas._

_Li received his JD with honors from Tulane Law School and an
undergraduate degree in history from the University of Texas at
Austin._

_THE BRENNAN CENTER fights to make elections fair, end mass
incarceration, and preserve our liberties — in Congress, the states,
the courts, and the court of public opinion. Join us in building an
America that is democratic, just, and free. Support the Brennan
Center. [[link removed]]_

* Voting Rights Act
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* U.S. Supreme Court
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* Arkansas
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* Gerrymandering
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* redistricting
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