A federal court ruling is teeing up another major Supreme Court case that could radically weaken the Voting Rights Act by blocking private citizens and civil rights groups from filing lawsuits to protect what has become America’s bedrock voting protections.
On Monday, a three-judge panel with the US Court of Appeals for the 8th Circuit upheld a lower court ruling that determined that citizens and groups like the American Civil Liberties Union and the NAACP cannot legally challenge discriminatory state and local election laws.
According to two of the judges on the panel, only the US Department of Justice can do so.
Michael Li, senior counsel with the Brennan Center for Justice at NYU Law, called the decision “so unmoored from precedent that even the current ultraconservative Supreme Court is almost certain to reverse it.”
Under the lastest decision, voters facing discriminatory laws would have to rely only on the Justice Department to take up their case.
If a highly politicised Justice Department under a Republican president hostile to voting rights declines, “minority voters would be out of luck,” Mr Li wrote. “The result would be catastrophic.”
The case – Arkansas State Conference NAACP v Arkansas Board of Apportionment – deals with Section 2 of the Voting Rights Act, which prohibits election laws and policies that discriminate against voters based on race.
Two years ago, the Supreme Court’s decision in Brnovich v Democratic National Committee struck at Section 2 by making it more difficult to challenge election laws. And in 2013, the nation’s highest court gutted critical federal oversight measures from the 1965 Voting Rights Act to protect against discriminatory laws.
That 2013 ruling struck out federal “preclearance” guidelines that required states with histories of racial discrimination at the polls from implementing new elections laws without first receiving federal approval.
Ten years later, the Supreme Court is poised to review the latest case surrounding Section 2, after a court ruling that landed “a body blow to what is left of the Voting Rights Act,” according to Judith Browne Dianis, executive director of the Advancement Project.
“The ability to sue has been fundamental and critical to beating back voter suppression,” she said. “This is unreal.”
At least 182 successful Section 2 lawsuits were filed within the last 40 years, including 15 that were brought solely by the US attorney general, Chief Judge Lavenski R Smith noted in his dissent.
The 2-1 decision upheld a previous decision from US District Court Judge Lee Rudofsky, who was appointed by former president Donald Trump. The judge dismissed a lawsuit last year that challenged a voting map in Arkansas over allegations that the newly drawn congressional districts weakened Black voters’ electoral power.
Judge Rudofsky gave US Attorney General Merrick Garland five days to join the case. When he didn’t, the judge dropped it.
Appeals court judge Judge David Stras – another Trump appointee – wrote that the “assumption” that Section 2 can be enforced “rests on flimsy footing.”
Richard L Hasen, a professor of law and political science at the University of California, wrote that the decision was written “with a wooden, textualist analysis” despite “recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought” and that Congress “intended to allow private plaintiffs” to file them.
The ACLU’s Voting Rights Project director Sophia Lin Lakin, who argued the case before the court, called the ruling a “travesty for democracy.”
“For generations, private individuals have brought cases under Section 2 of the Voting Rights Act to protect their right to vote,” she said in a statement. “By failing to reverse the district court’s radical decision, the 8th Circuit has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for.”
Barry Jefferson, political action chair of the Arkansas State Conference of the NAACP, the lead plaintiff in the case, called the ruling a “devastating blow to the civil rights of every American, and the integrity of our nation’s electoral system.”
The plaintiffs are now exploring “all available options to ensure that the rights of all voters are fully protected.”
Senate Republicans have repeatedly blocked efforts to restore elements of the Voting Rights Act and expand voting rights protections in the wake of the 2020 election. Meanwhile, GOP lawmakers across the country have enacted dozens of restrictive voting laws and laws that reshape the roles of election administration, giving power to partisan officials to do what Mr Trump and his allies failed to do in 2020.