Republican-Appointed Judges Dismantle Individuals’ Right To Sue Under Section 2 in Eight States

Last week, in a catastrophic landmark decision, the 8th Circuit severely weakened Section 2 of the VRA in the states under its purview by ruling that only the U.S. Department of Justice — not individuals and organizations — can sue under Section 2 in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. 

Without a private right of action, as it’s called in the legal world, voters and groups such as civil rights organizations cannot challenge voting rules or maps under Section 2, a key provision of the VRA that prohibits any voting law, practice or map that results in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

The opinion stems from a 2021 lawsuit challenging Arkansas’ new state House map. But what began as a standard redistricting lawsuit has ballooned into an upheaval of voting rights litigation. As the dissent contextualized, “Over the past forty years, there have been at least 182 successful Section 2 cases; of those 182 cases, only 15 were brought solely by the Attorney General.”

The decision, authored by a Trump-appointed judge, upends decades of precedent and will severely hinder the fight for voting rights and fair, non-discriminatory maps. 

Even outside of those eight states covered by the 8th Circuit, the ruling’s impact was immediate. Court victories in cases brought by private plaintiffs are responsible for redistricting victories in Alabama, Louisiana, Georgia and North Dakota — and Republicans in some of those states immediately reacted to this 8th Circuit ruling. 

Just a day after the Arkansas ruling, North Dakota Secretary of State Michael Howe (R) announced his intentions to appeal a decision striking down the state's legislative districts for violating the VRA by diluting Native American voting strength. Howe cited the 8th Circuit’s ruling in his announcement.

Similarly, as a result of this decision, Louisiana intends to ask the 5th U.S. Circuit Court of Appeals to reconsider a ruling that the state’s congressional map likely violates the VRA.

In a lawsuit challenging Georgia's "wet signature" requirement — meaning absentee ballot applications must be signed with pen and ink — Georgia officials argued that private litigants cannot bring lawsuits under the Materiality Provision of the Civil Rights Act.

• Despite the 8th Circuit's ruling, there remains established precedent that private groups and individuals can file lawsuits under Section 2 of the VRA in the 5th, 6th and 11th U.S. Circuit Courts of Appeals. 

One Step Forward, One Step Back: Vote Dilution in Georgia

On Wednesday, a special legislative session began in Georgia after a federal judge struck down the state’s legislative and congressional maps, finding that the maps violate the VRA. In last month’s decision, the judge emphasized the truncated timeline ahead of the 2024 elections, "[T]he Court will not allow another election cycle on redistricting plans that the Court has determined on a full trial record to be unlawful.”

To remedy the VRA violations, Georgia must adopt the following districts by next Friday, Dec. 8:  

• One additional majority-Black congressional district in west-metro Atlanta;

• Two additional majority-Black Senate districts in south-metro Atlanta;

• Two additional majority-Black House districts in south-metro Atlanta; 

• One additional majority-Black House district in west-metro Atlanta and  

• Two additional majority-Black House districts in and around Macon-Bibb.

Earlier this week, the respective committees released a proposed state House map that adds five additional majority-Black districts and a proposed state Senate map with two additional majority-Black districts — both per the federal court’s directive. No congressional map proposals have been released yet. 

If the Legislature does not take the necessary steps to remedy the VRA violations by next week’s deadline, the court will take over drawing the map. Georgia officials have appealed the decision that requires the redraw. 

Also in Georgia, the 11th Circuit ruled that the state can continue to hold at-large elections for its Public Service Commission, reversing a lower court’s ruling that the election method violates the VRA and dilutes Black voting power.

State Supreme Courts Weigh In on Maps

Last week, the Wisconsin Supreme Court held oral argument over the course of three hours in a lawsuit to determine if the state Assembly and Senate maps need to be redrawn ahead of 2024. Read more about the state’s dramatic and circuitous redistricting journey here. 

Then on Wednesday of this week, the New Hampshire Supreme Court ruled that courts cannot hear extreme partisan gerrymandering lawsuits in the state. This means that politicians can gerrymander the state's congressional and legislative maps to favor one political party without any legal recourse.

Across the country — and in better news — the New Mexico Supreme Court unanimously upheld the state’s congressional map, rejecting a Republican lawsuit arguing that the map unfairly benefits Democrats. The current districts will remain in place for 2024 and beyond.

• To the south, a Tennessee three-judge panel struck down the state's Senate map for violating the Tennessee Constitution. Lawmakers have until Jan. 31 to enact a new map. 

More News

• The entire 5th Circuit will rehear a case challenging the districts for Galveston County, Texas’ legislative body. The unprecedented move voids a decision from a panel of 5th Circuit judges striking down the map for violating the VRA by suppressing Black and Latino voters. 

  • The 5th Circuit also lifted its pause of the district court's order requiring Galveston County to redraw its districts. As a result, the county will need to implement new districts that comply with the VRA.

• A federal judge struck down Pennsylvania's policy of rejecting mail-in ballots if the outer envelopes are missing a correct handwritten date from voters. Over 7,600 ballots were rejected in 2022 because of the rule. The ruling had an immediate impact on this month’s election results in Montgomery County.

• The U.S. Supreme Court ruled that Arizona lawmakers must produce documents and testify about two voter suppression laws requiring strict citizenship proof for voting. The lawmakers sought to escape having to release records and submit to depositions.

FROM MARC: Here’s What I’m Thankful for This Year

This year Section 2 of the VRA brought many critical wins for voters, a point that's especially poignant in light of the devastating ruling from the 8th Circuit. Read the latest from Marc Elias, the founder of Democracy Docket ➡️

It’s getting chilly out so we’re cozying up and reading about democracy. 

First on this week’s list is an article about the importance of election workers and their powerful institutional knowledge that’s at risk as they face baseless threats from the right. Across the country, states like Michigan have enacted laws to better protect and support some of the most integral members of our democracy. 

Then, the People’s Parity Project just released a report on the professional diversity of— or the lack thereof — Arizona’s judiciary. On the federal level, the Biden administration has committed itself to increasing the array of backgrounds on the federal bench. Did you know that Justice Ketanji Brown Jackson is the first former public defender on the Supreme Court?

Read more about judicial reforms here.

On this week’s episode of Defending Democracy, Marc and Paige speak about the state of the VRA. Hint — it’s seen better days. But innovation may be the key forward in the fight to protect democracy. Listen on Apple, Spotify or wherever you get your podcasts or enjoy it in newly available video form on YouTube.