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THE PLAN TO TAKE OUT VOTING RIGHTS  
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Quinn Yeargain
February 9, 2024
the Lever
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_ Conservatives are launching a new battle to destroy what’s left
of the Voting Rights Act. _

Demonstrator Jo-Lynn Gilliam, of Atlanta, during a march for voting
rights in 2021., AP Photo/Brynn Anderson)

 

After years of being whittled away by federal judges, the Voting
Rights Act
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which prohibits racial discrimination in voting, unexpectedly survived
an existential threat in 2023 when the U.S. Supreme Court upheld
what’s left of the landmark 1965 civil rights law while striking
down Alabama’s congressional map.

“The court didn’t make it any easier to win voting rights
cases,” redistricting expert Justin Levitt said at the time
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just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights
cases may still get much harder this year. A series of cases are
working their way through federal courts that represent grave threats
to Section 2 of the Voting Rights Act, which prohibits
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to vote “on account or race or color,” language that extends into
protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal
arguments, each of which would dramatically narrow the scope of the
Voting Rights Act. The cases are still making their way through
district and appellate courts, with some early rulings favoring
conservatives, at times authored by judges nominated by Donald Trump.
Many are expected to end up at the Supreme Court, where members of the
conservative majority have already expressed skepticism at various
aspects of the voting rights law. 

Judges will decide if critical protections afforded by Section 2 of
the Voting Rights Act remain applicable to the present, whether the
law applies to statewide races and coalition districts, and even
whether voting rights groups can ever bring a lawsuit under Section 2
— a sleeper case that already detonated in an appeals court last
fall. The most acute stakes concern the rules of redistricting, with
officials in GOP-run states including Alabama, Arkansas, Louisiana,
North Dakota, and Texas proposing new interpretations that would fuel
gerrymandering and undercut the voting power of communities of
color. 

Here is your roadmap to four major legal threats that may further
unravel the Voting Rights Act in 2024, and what cases you should be
watching.

1. What If Private Plaintiffs Can No Longer Sue?

For decades, ordinary citizens and voting-rights organizations have
brought lawsuits alleging Voting Rights Act violations. These
lawsuits, and the mountain of legal work and research that goes into
them, have been critical to getting courts to strike down
discriminatory legislation and create districts that allow communities
of color to be represented by candidates of their choice.

In what is undoubtedly the biggest threat facing the Voting Rights
Act, federal courts might invalidate that entire approach.
Conservatives have made the case that only the U.S. Attorney General
has the power to sue over violations of Section 2 of the Voting Rights
Act, and they landed a startling ruling by a district court judge last
year. If the ruling stands, it would ban private parties from bringing
these lawsuits, massively shrinking enforcement; when the Department
of Justice is controlled by politicians hostile to civil rights, it
may eliminate these lawsuits altogether. 

WHAT ARE THE CASES TO WATCH?

Keep an eye on _Arkansas State Conference NAACP v. Arkansas Board of
Apportionment_, the challenge to Arkansas’s state legislative
districts. 

After Arkansas Republicans drew new legislative maps in 2021
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the state NAACP sued in federal court, arguing that Black Arkansans
were underrepresented, and that this violated Section 2 of the Voting
Rights Act. But the district court judge who heard the case,
Trump-appointee Lee Rudofsky, questioned
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whether the NAACP was even allowed to bring suit at all. 

It’s been a long-established practice for private parties to sue
over Section 2 allegations. But Justices Neil Gorsuch and Clarence
Thomas encouraged
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that question to be revisited in a 2021 concurrence, stating that
courts have “assumed” that this is appropriate without ever
deciding it. Walking into that breach, with an explicit appeal
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to Gorsuch, Rudofsky ended up dismissing the suit with a bombshell
finding
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“Only the Attorney General of the United States can bring a case
like this one.” 

In November, a three-judge panel on the Eighth Circuit, one of the
most conservative appellate courts in the country, affirmed that
ruling [[link removed]] in a
decision authored by Eighth Circuit Judge David Stras.

If the ruling holds — the NAACP has asked the full Eighth Circuit to
reconsider the decision, and an appeal to the U.S. Supreme Court is
likely regardless — it would be sure to sideline a great many Voting
Rights Act cases. Besides the Arkansas litigation, high-profile cases
last year that led to new maps in Alabama and Louisiana were brought
by private plaintiffs, and would have been dismissed outright under
Stras’ ruling.

The GOP has rushed to defend the holding and use it in other contexts.
In December, the Republican attorneys general of twelve states
(including Idaho’s Raul Labrador, Kansas’ Kris Kobach, and
Texas’ Ken Paxton, all prominent far-right figures) signed on to an
amicus brief
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asking the Fifth Circuit to take on the Eighth Circuit’s
interpretation and rule against voting rights groups in the ongoing
litigation around Alabama’s congressional map.

And in North Dakota, a state that falls within the Eighth Circuit, the
Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe
successfully challenged
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legislative districts in 2023 for diminishing the voting power of
Native voters. State officials have agreed to use a replacement map
for the 2024 election but have appealed
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the use of the map beyond that point. And in pushing back against the
ruling last month, North Dakota’s Republican Secretary of State,
Michael Howe, has already invoked
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the same argument that private parties cannot bring suits under
Section 2 of the Voting Rights Act, an argument that would outright
silence the legal power of the two tribes that challenged the state.

2. The Conservative Argument That Times Have Changed

When the Supreme Court in 2013 struck down Section 5 of the Voting
Rights Act, which required certain jurisdictions to seek D.O.J.
approval before changing their voting procedures, Chief Justice John
Roberts wrote that “things have changed dramatically” in the South
since 1965.

Some conservatives want federal courts to go even further, and
dramatically re-interpret Section 2 on that same basis. And Justice
Brett Kavanaugh last year gave them a reason to keep trying, doing so
in the very same Alabama case
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which he sided with the liberal justices to otherwise save the Voting
Rights Act. He noted that Justice Clarence Thomas’s dissenting
opinion in the case argued that “the authority to conduct race-based
redistricting cannot extend indefinitely into the future.” But
Kavanaugh wrote that “Alabama did not raise that temporal argument
in this Court, and I therefore would not consider it at this time.”
The time may now be coming that will test Kavanaugh: Despite the
massive barriers that people of color continue to face in exercising
the franchise, multiple cases are working their way through the legal
system in which defendants are renewing the argument that “things
have changed” too much to keep enforcing Section 2.

WHAT ARE THE CASES TO WATCH?

Keep an eye on _Milligan v. Allen_, the continued litigation over
Alabama’s congressional map, and Robinson v. Landry, the challenge
to Louisiana’s congressional map 

Alabama this year will vote under a new congressional map
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that a federal court drew in late 2023 to create an additional
district likely to elect a Black candidate. State officials have
objected to the new map, and in so doing they’ve picked up on
Kavanaugh’s argument: Alabama is asking courts
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to decide whether “the authority to conduct race-based redistricting
extends to the present day,” regardless of its original
justification. 

Louisiana officials have made a similar claim in their effort to fight
court rulings that have struck down the state’s congressional maps
as violating the Voting Rights Act. (Louisiana adopted a new map
creating a new majority-Black district this month due to a
court-ordered deadline, but the litigation over that order
continues.) 

Alabama has called
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the litigation against its original map “affirmative action in
redistricting.” In 2023, the U.S. Supreme Court struck down
affirmative action in university admissions, and even though that case
did not touch on voting rights, GOP officials in several states have
weaponized the case to argue that the Voting Rights Act is no longer
applicable to the present.

In July, Louisiana officials filed a brief
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arguing that the affirmative action decision shows that “statutes
requiring race-based classification” will “necessarily become
obsolete.” They ask courts to settle “whether the facts on the
ground here similarly warrant a rejection of Section 2 of the Voting
Rights Act, as applied, because it is no longer necessary.”

If the Fifth Circuit and the Supreme Court take the bait and say the
established interpretation of Section 2 as no longer permissible, it
would greatly narrow the legal space for racial discrimination claims.

It would amount to a judicial carte blanche_ _for states to double
down on discriminatory practices, except now shielded by the argument
that the country is too enlightened to allow such practices.

3. Courts May Shut The Door To Sue Over Statewide Elections

Legal challenges often focus on how politicians have drawn districts:
Have they respected the Voting Rights Act in how they have separated
or combined a state’s communities? But civil rights litigants have
also contested the use of “at-large” elections, which are
elections that elect the members of a body (say, a city council)
throughout the jurisdiction, without the use of districts. Using this
“at-large” structure for local races can prevent minority groups
from electing a candidate of their choice; in some contexts, lawsuits
have successfully forced counties and cities to convert their
electoral system to use districts, allowing different communities to
be better represented.

A case that’s percolating through the federal court system may
decide whether similar lawsuits can ever be brought in the context of
statewide elections. If that door is shut, it would put many
government bodies whose members are elected at-large — most
commonly, public utility commissions, boards of university regents, or
boards of education — beyond the reach of Voting Rights Act
litigation.

WHAT ARE THE CASES TO WATCH?

Keep an eye on _Rose v. Raffensperger_, the challenge to Georgia’s
public service commission elections. 

In 2020, several Georgia voters sued over the use of statewide
(“at-large”) elections for the five members of the state’s
Public Service Commission, the body that regulates public utilities.
They argued that a compact, Black-majority district could be created
to elect a member of the Commission; a district court agreed after a
trial, and ordered the state legislature to draw districts to that
effect. But the state’s decision to appeal dragged out the process,
leading to canceled elections
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And in November, in a ruling
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authored by Judge Elizabeth Branch, another Trump appointee, a
three-judge panel on the Eleventh Circuit reversed that decision. The
panel held that the plaintiffs had not made out a sufficient claim
under the Voting Rights Act because their proposed remedy would
“upset Georgia’s policy interests,” specifically, its
“interest in maintaining its form of government.” In other words,
because the Georgia legislature decided to make the Public Service
Commission elected statewide, the court was obligated to respect that
decision.

The ultimate resolution of this case will shape the viability of a lot
of prospective litigation. This is believed to be the first case
challenging the use of a statewide electoral system, so the district
court’s decision had opened the door to similar challenges popping
up elsewhere. If lawsuits like this can be brought against the use of
statewide elections to pick members of state boards, voters may be
able to target other elected state institutions whose “at large”
membership is largely or all-white — Alabama’s Public Service
Commission and Texas’s Railroad Commission come to mind — with the
demand that they replace statewide elections with a system that
providing communities of color a better opportunity to elect a
member. 

If these challenges can’t be brought, however, communities of color
may keep being systematically shut out with impunity.

4. The Use Of “Coalition Districts” Is Under Threat

The Voting Rights Act may compel states or localities to create
districts that give voters in a racial group the opportunity to elect
a candidate of their choice. In deciding whether such a district is
required, federal courts assess whether a specific group’s size and
voting behavior warrant such an opportunity district. But what happens
when no single racial group is large enough to reach that threshold,
but several do so when _combined_? 

In that context, some federal courts have required the creation of
“coalition” districts, a practice that has boosted representation
for people of color. For instance, they may consider Black and Latinx
residents together to force the creation of a district in which voters
would have a better shot at electing a nonwhite candidate. A case out
of Texas is now threatening this practice, however. 

WHAT ARE THE CASES TO WATCH?

Keep an eye on _Petteway v. Galveston County_, the challenge to county
commission districts in Galveston County, Texas. 

Following the 2020 census, Galveston County commissioners drew a new
set of districts for their county commission; their map eliminated the
county’s only “majority-minority” district — a coalition
district in which Black and Latino voters make up a majority. Backed
by conservative legal groups, the county argued
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during a trial last year that the Voting Rights Act should not be used
to protect multiracial coalitions; but a federal court sided with
plaintiffs in restoring the district. Judge Jeffrey Brown, who was
nominated by Trump, even wrote
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that the “circumstances and effect of the enacted plan were
mean-spirited and egregious.”

But the conservative Fifth Circuit chose to suspend the decision until
it could decide the county’s appeal, and the U.S. Supreme Court
blessed that move in December over the objections of liberal justices
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The appeals court made clear that it wanted to revisit
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its past decisions that have endorsed the use of coalition districts.

The case may hand conservative justices another shot at upending the
redistricting norms, if they choose to weigh in for the first time on
the permissibility of coalition districts. If coalition districts are
no longer used as a remedy to racial discrimination, it may further
cut the number of districts drawn to elect people of color; in
racially diverse regions like Texas, it would make it harder to
challenge maps that are resulting in a disproportionate number of
white officials.

Some of these questions are playing out in Georgia. A federal court
last year struck down the state’s congressional map, ordering an
additional Black opportunity district. The legislature responded by
carving up an existing coalition district and turning it into a Black
majority district. The challengers have argued, unsuccessfully so far,
that this is impermissible: that fixing a Voting Rights Act violation
cannot involve eliminating an existing coalition district.

_The Lever_ is a nonpartisan, reader-supported investigative news
outlet that holds accountable the people and corporations manipulating
the levers of power. The organization was founded in 2020 by David
Sirota, an award-winning journalist and Oscar-nominated writer who
served as the presidential campaign speechwriter for Bernie Sanders.

* voting rights
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* Voting Rights Act
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