A group of plaintiffs challenging Arkansas’s state legislative district lines now may be looking at a stronger case thanks to yesterday’s surprise ruling from the U.S. Supreme Court on a Voting Rights Act case out of Alabama.
That’s the argument from ACLU attorney Sophia Lin Lakin, who submitted a letter to the Eighth Circuit Court of Appeals today noting the relevance of Thursday’s decision to an Arkansas case that has been sitting before the appellate court since the beginning of the year. At issue is whether private individuals and groups can sue over potential violations of the VRA — as has been accepted law for decades — or whether the U.S. Justice Department alone can bring those cases.
The case began when the NAACP and the Arkansas Public Policy Panel challenged a state House of Representatives district map adopted in 2021 by a state redistricting panel, saying it diluted the power of Black voters in violation of the VRA. The three-member Board of Apportionment, made up of Arkansas’s governor, attorney general and secretary of state, approved the maps despite pushback from Democrats and Black voters. (Though they deal with similar issues, legal challenges to the state legislative map are separate from lawsuits over Arkansas’s congressional redistricting maps.)
In February 2022, U.S. District Court Judge Lee Rudofsky of Little Rock ruled against the plaintiffs. Though he acknowledged that their case was “strong” on the merits, Rudofsky said he had revisited the text of the Voting Rights Act and determined the law does not allow private parties to sue when their voting rights are violated.
Instead, the VRA’s “text and structure strongly suggest that exclusive enforcement authority resides in the Attorney General of the United States,” Rudofsky wrote, despite decades of precedent in which federal courts heard voting rights cases brought by private parties seeking to prevent state and local governments from disenfranchising voters based on race.
Plaintiffs appealed the decision to the Eighth Circuit in St. Louis, where a three-judge panel heard oral arguments on January 11. And though we’re still waiting on a ruling, the Supreme Court’s ruling yesterday upholding a VRA claim against a gerrymandered congressional map in Alabama could move things along.
Lakin, the ACLU attorney arguing the appellate case, said the Supreme Court “implicitly recognized a private right of action” to enforce the VRA in yesterday’s ruling on the Alabama case, Allen v. Milligan. “The Court in Milligan would not have affirmed an order requiring Alabama to redraw its congressional map if it lacked jurisdiction,” she wrote. That should be “fatal” to the defendants’ arguments, Laking said.
Here’s the ACLU’s full letter to the court:
Michael E. Gans, Clerk of Court
United States Court of Appeals, Eighth Circuit
Thomas F. Eagleton Courthouse
111 South 10th Street
St. Louis, MO 63102
Re: Supplemental Authority in Arkansas NAACP et al., v. Arkansas Board of Apportionment et al.
Dear Mr. Gans,
Pursuant to F.R.A.P. 28(j), Appellants respectfully submit supplemental authority regarding whether private parties may enforce Section 2 of the Voting Rights Act (“Section 2”).
On June 8, in a Section 2 case brought solely by private plaintiffs, the Supreme Court affirmed a three-judge panel’s determination that “plaintiffs demonstrated a reasonable likelihood of success on their claim that [Alabama’s congressional redistricting plan] violates §2.” Allen v. Milligan, Nos. 21-1086 and 21-1087, 599 U.S. ___ (2023), slip op. at 9 (Exhibit A).
Milligan implicitly recognized a private right of action to enforce Section 2, pointing to 37 years of jurisprudence—including several private plaintiff suits—under the Gingles framework that “Congress has never disturbed.” Id. at 11. The Court in Milligan would not have affirmed an order requiring Alabama to redraw its congressional map if it lacked jurisdiction. Even the principal dissent recognized this is at most a waivable non-jurisdictional issue. Cf. id. at 47 n.22 (Thomas, J., dissenting) (noting question “whether §2 contains a private right of action” was “argued below but was not raised in this Court,” and not questioning the jurisdiction to reach the merits). This is fatal to Defendants-Appellees because the District Court found that the private right of action “issue was waived by Defendants.” Ark. State Conference NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893, 916 (E.D. Ark. 2022).
Also, on June 8, the Supreme Court held that private plaintiffs can enforce their rights created by federal statute via 42 U.S.C. § 1983. Health & Hosp. Corp. of Marion Cnty. v. Talevski, No. 21-806, 599 U.S. ___ (2023) (Exhibit B). The Court held that the presumption of § 1983 enforceability for federal statutory rights cannot be rebutted merely by pointing to “a detailed enforcement regime that also protects those interests,” unless that enforcement regime is “incompatible with individual enforcement under §1983.” Talevski, slip op. at 19 (citation omitted). Talevski clarifies that § 1983 provides another basis for Appellants to enforce their
Appellate Case: 22-1395 Page: 1 Date Filed: 06/09/2023 Entry ID: 5285428
Section 2 rights because the statute contains unambiguous rights-creating language and there is no detailed enforcement regime incompatible with individual enforcement.
Sophia Lin Lakin
Attorney for the Appellants
American Civil Liberties Union