FEDERAL COURTHOUSE Brian Chilson

A three-judge panel has partially dismissed a federal lawsuit challenging the legislature’s redrawing of the 2nd Congressional District to reflect the 2020 Census. In an opinion released today, the panel dismissed most of the plaintiffs’ claims and deferred ruling on whether to dismiss a remaining argument for 30 days, during which time the plaintiffs can submit new support.

A group of area residents and two state legislators brought the claim after the General Assembly divided Pulaski County, the state’s largest and with a significant Black population that typically favors Democratic candidates, into three congressional districts. To replace the predominantly Black voters in Pulaski that were removed from the 2nd District, virtually all-white Cleburne County was added.

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The plaintiffs, represented by attorney Richard Mays, are Jackie Williams Simpson, Rep. Denise Ennett, Wanda King, Charles Bolden, Anika Whitfield and Sen. Linda Chesterfield.

The lawsuit named the state of Arkansas, Governor Hutchinson and Secretary of State John Thurston as defendants.

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The three-judge panel is made up of U.S. District Court Judges Price Marshall and James Moody and U.S. 8th Circuit Court of Appeals Judge David Stras.

The panel dismissed the state and Hutchinson as defendants.

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On balance, it’s hard to read the outcome as anything but a bad day for the plaintiffs, beginning with the first paragraph of the opinion written by Judge David Stras.

Redrawing congressional maps is a politically charged exercise. After
Arkansas redrew its map following the 2020 census, a group of black voters
challenged it. There are a number of claims in the complaint, but not enough pleaded
facts to support any of them. So we dismiss some claims with prejudice and grant the plaintiffs leave to replead the rest.

The opinion says there is no “smoking gun” evidence that the map was drawn with a discriminatory purpose. It said comments by Governor Asa Hutchinson that he didn’t want to sign the legislation because of its racial impact in Pulaski County aren’t proof of legislative intent. A law is not racially discriminatory simply because it has racial impact, the opinion said.

The lawsuit also raised partisan considerations in the map, but the opinion said if a partisan motive is predominant, a racial motive cannot be. And partisan politics are generally viewed beyond the reach of federal courts now.

The only other specific allegations involve the new map itself, which splits
the black community in southern and eastern Pulaski County into two congressional
districts. Even if the new map is “consistent with” racially motivated redistricting, it does not “plausibly establish this purpose” on its own. Nor does using the word “cracking” in the complaint. It is not a fact, but a conclusion to draw from them.

The panel also rejected a claim under the Voting Rights Act because the plaintiffs admitted there was no way to draw a majority Black district in Arkansas because of a relatively small Black population. Interestingly, it accepted at least for the moment the argument that a private right of action is allowed under the Voting Rights Act, something District Judge Lee Rudofsky rejected in overturning a half-century of precedent in dismissing a separate lawsuit over the legislature’s gerrymander of Arkansas House districts. Small victory because this panel concluded the Voting Rights Act doesn’t abrogate sovereign immunity and thus the state and governor can’t be sued.

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And cue the Twilight Zone and add another conservative court’s contribution to the death of the Voting Rights Act:

The plaintiffs pose an important question: why mention states and political
subdivisions at all if no one can sue them?

Recognizing the possibility of a lawsuit against a “state or political subdivision” is different from specifically authorizing it. The Voting Rights Act may very well, as the Supreme Court put it, “lend[] force to the inference that the [s]tates were intended to be subject” to liability. But an inference is not an “unequivocal declaration,” and only the latter allows us to say “that Congress intended to exercise its powers of abrogation.” Id. With no “unequivocal declaration,” Arkansas cannot remain in the lawsuit.

What’s left was the argument of vote dilution, a redistricting that diminishes minority voices. The 8th Circuit has previously found favor to a 15th Amendment protection against vote dilution. The opinion today revealed a split on the question.

… members of this panel disagree about whether Fifteenth Amendment vote-dilution claims exist.

One view is that the Fifteenth Amendment’s text and binding Eighth Circuit precedent support a properly pleaded claim. … The other is that the text has nothing to say about vote dilution [and that subsequent Supreme Court decisions are at odds with the 8th Circuit precedent.]

Even if the plaintiffs do have a legal claim to make the vote dilution argument, the opinion continued, “the plaintiffs are a few specific factual allegations short of pleading a plausible vote-dilution claim. Nevertheless, given that it is possible they can still plead one, we will give them another chance to do so.”

Claims under the 1st and 14th amendments fail as a matter of law, the opinion said.

The decision was not going to affect this year’s election. It is going forward under the new map. A separate legal challenge continues of the state board of apportionment’s gerrymander of state House districts using the new census figures.