The Supreme Court, after a long period of hostility toward any claim brought under the federal Voting Rights Act, recently signaled that this hostility has limits. Last June, the Court surprised nearly everyone who follows voting rights litigation by declaring Alabama’s racially gerrymandered maps illegal and ordering the state to draw a second majority-Black congressional district.
Yet if the Supreme Court’s June decision in Allen v. Milligan (2023) was supposed to be a signal that the justices intend to keep at least some safeguards against racism in elections in place, several Republican appointees to the lower courts missed the memo. Last week, as most Americans were thinking about their Thanksgiving dinners, a pair of federal appeals courts handed down some of the sharpest attacks on the Voting Rights Act — the landmark 1965 law prohibiting race discrimination in US elections — in the law’s history.
The first was an opinion from a divided panel of the United States Court of Appeals for the Eighth Circuit that, if affirmed by the Supreme Court, would virtually destroy the Voting Rights Act.
The Eighth Circuit’s opinion in Arkansas State Conference NAACP v. Arkansas Public Policy Panel, written by Trump Judge David Stras, would strip private parties of their ability to file lawsuits enforcing the Voting Rights Act and establish that all such lawsuits must be brought by the Justice Department.
This decision is dead wrong, and it conflicts with decades of precedent.
As Judge Lavenski Smith notes in dissent, over the past 40 years litigants have brought 182 successful lawsuits under the Voting Rights Act. Only 15 were brought solely by the DOJ. So, if Stras’s unusual reading of the law were correct, nearly 92 percent of all of these victorious lawsuits should have ended in defeat for the plaintiffs.
Then, on the day after Thanksgiving, the 11th Circuit handed down its own decision attacking a core principle of the Voting Rights Act. Trump Judge…
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