A federal appeals court launched an appalling attack on the landmark law. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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This week, I’m turning The Briefing over to my colleague Michael Li, senior counsel in the Brennan Center’s Democracy Program, to share breaking (and troubling) news about the Voting Rights Act.

—Michael Waldman

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 a 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 conservative 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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2–1 in a case challenging Arkansas’s legislative maps that only the U.S. Department of Justice — 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 now make up 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 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.





New Attacks on Democracy in Ohio

After Ohioans passed a constitutional amendment protecting abortion rights earlier this month, some Ohio legislators vowed to do everything in their power to thwart the will of the people. In a major threat to judicial independence, they proposed a bill that would impeach state judges for trying to enforce the new abortion rights. While the bill has been shelved for now, state lawmakers’ attempt to upset our system of checks and balances is an ominous sign. “Threatening to strip courts’ authority to vindicate the voice of voters, as enshrined in state constitutions, offends fundamental democratic principles,” Michael Milov-Cordoba writes. Read more

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Preventing Abuse of the Insurrection Act

If reelected, former President Trump reportedly plans to invoke the Insurrection Act — which gives the president nearly limitless powers to use the military as a domestic police force — to suppress any public protests against him. The Brennan Center has proposed reforms to the dangerous and antiquated law in order to prevent antidemocratic threats like these from becoming reality. Faced with the prospect of a president who would seek to abuse the Insurrection Act, “Congress should take up these or similar reforms without delay,” Joseph Nunn writes in Slate. READ MORE

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Uncovering the NYPD’s Social Media Monitoring

After nearly three years of stonewalling by the New York City Police Department, the Brennan Center filed a lawsuit on Monday to uncover how it monitors, collects, and uses social media information. The NYPD’s refusal to detail its online surveillance practices makes it harder to hold law enforcement accountable for violating New Yorkers’ privacy and First Amendment rights. “Our new lawsuit aims to ensure that the police department can no longer evade its obligations for public transparency,” Emile Ayoub and Helen Griffiths write. READ MORE

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The Immediate Dangers of AI

Government agencies and companies are using flawed artificial intelligence systems to make critical decisions, threatening people’s job opportunities, access to public benefits, and privacy. The Brennan Center and more than 85 other public interest organizations sent a letter to Congress urging lawmakers to tackle the harms AI is already causing to our economy and society, which especially affect marginalized communities. “The impacts of AI are here and now, and Congress must confront them without further delay,” Ivey Dyson writes. READ MORE

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Protecting Government Science from Politics

Science plays an essential role in state and local governments, informing policies designed to protect the public, the environment, and more. But officials have repeatedly politicized and distorted science in decision-making processes, harming underserved communities. “To keep such episodes from happening, states need to put in place laws and policies to safeguard the integrity of science used in policymaking,” Jacob Carter and Martha Kinsella write in STAT News. Read more

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A Look at All 50 State Constitutions

Americans pay relatively little attention to state constitutions, even though they touch some of the most fundamental aspects of our lives, from voting to personal liberties. One reason these charters fly under the radar is that they can sometimes be difficult to access, and their content changes frequently. A new resource from the State Democracy Research Initiative allows users to view and search through the text of all 50 constitutions, giving scholars, litigants, and the public the chance to engage with these vital, ever-changing documents. READ MORE

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Events

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Sen. Sheldon Whitehouse (D-RI) and Brennan Center President Michael Waldman recently participated in a live event about the need for Supreme Court term limits and other essential reforms. WATCH NOW >>

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VIRTUAL EVENT: How Will AI Affect the 2024 Election?

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Tuesday, November 28, 6–7 p.m. ET



2024 will bring the first presidential election of the generative AI era. As artificial intelligence produces output that is increasingly difficult to distinguish from human-created content, how will voters separate fact from fiction? The Brennan Center and Georgetown University’s Center for Security and Emerging Technology are convening experts to examine these and other critical questions about how AI might impact election security, voter suppression, election administration, and political advertising and fundraising.



Join us for this live virtual panel, which will explore what steps the government, the private sector, and nonprofits should take to minimize the possible dangers while harnessing the benefits of these new and powerful tools. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Jennifer Ahearn on the Supreme Court’s new ethics code // FORBES

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Sara Carter on trends in state voting laws ahead of 2024 // USA TODAY

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Kareem Crayton on the debate over new voting districts in Georgia // ASSOCIATED PRESS

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Hernandez Stroud on the calls for a federal takeover of Rikers Island // WALL STREET JOURNAL

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