News Friday from filings in the 8th U.S. Circuit Court of Appeals, where the ACLU is challenging federal Judge Lee Rudofsky’s dismissal of a challenge of the Arkansas legislature’s racial gerrymander of state House of Representative districts.

Rudofsky conceded some problems in the lines for state House districts that were drawn by the state Board of Apportionment but said there was no private cause of action to bring a Voting Rights Act challenge. It was a decision that, if upheld, would reverse a half-century of federal court precedent. It would be in keeping, however, with Republican hopes to toss the VRA on the scrap heap, something Chief Justice John Roberts has long favored.

Advertisement

The ACLU filed Friday a motion to add to its appeal a decision by a three-judge district court panel in Georgia Monday on the “precise issue on appeal.”

That Georgia decision, the ACLU wrote, held unanimously that “the text and structure” of the Voting Rights Act “indicate that Congress has provided an implied private cause of action for Section 2 claims.” The court said that the law “identifies a specific right in explicit terms” and “expressly defines the particular class of persons: who possess that right. The opinion continued, “If that is not rights-creating language, we are not sure what is.”

Advertisement

The ACLU motion adds further arguments about the right to sue by private parties under the act. Private parties are plaintiffs in the lawsuit over the Arkansas legislature’s drawing of a map with 11 majority Black House districts among 100 while 16.5 percent of the people in Arkansas are Black.

The case will be decided by one of the most conservative appeals courts in the country, stacked with Republican appointees. Rudofsky, a Federalist Society adherent,  may well eventually prove to be the cutting edge of recognizing the direction the Trump-packed U.S. Supreme Court will go. Still, precedent once used to count for something in lower federal courts. Even the 8th Circuit, while desirous of invalidating abortion rights protection, deferred to the Roe v. Wade precedent when it still existed.

Advertisement

Elections in Arkansas this year are being held under the new boundaries. Rudofsky held that only the Justice Department could bring Voting Rights cases. There are too many for it to handle them all and it declined to take up the Arkansas case.