Partisan convenience? Nah!
Republican-nominated federal judges have determined that, gosh darn, they had no choice. They say they were compelled to prohibit Black people in Arkansas from going into federal court to advance even meritorious arguments that the latest drawing of state legislative districts saps them of their deserved voting power.
The legal reason they give is that the Voting Rights Act of 1965, one of the great advancements in Black people’s enfranchisement in this country, does not expressly say that private citizens may bring lawsuits under it in the way this one was brought.
It was filed by private citizens against the actions of politicians of a party that Black people tend not to trust because of the very kind of thing represented by this ruling.
There have been such cases brought with great regularity and full validity for decades. But it’s true that the act never straight-out says that private citizens could bring them.
The U.S. Supreme Court has never spoken on the specific question, meaning it has never stepped in to stop the practice allowed by lower courts based on clear legislative intent.
The plaintiffs in this suit were represented by private advocacy groups, which has been the prevailing practice under the Voting Rights Act for legislative redistricting complaints. It was filed against the state Board of Apportionment, consisting of three Republican state officeholders—the governor, the attorney general and the secretary of state.
In 2021, this panel re-drew state legislative districts as required after the decennial Census.
The suit cried foul in that Arkansas has a Black population of 16 percent, but the new maps supplied only 11 percent majority-Black districts in the House of Representatives. That happened, the suit alleged, by board intent to use an illegal method—“packing and cracking.” That refers to scrunching Blacks into a few heavily Black districts then spreading the rest too thinly in a way that reduces—or contains—Black voting influence.
A conservative legal group calling itself the Federalist Society has long served as the legal brain of the conservative Republican movement. As such, it has advanced applying law literally based strictly on how it was written originally. Federalist Society members are the religious fundamentalists of law.
A Donald Trump-nominated federal judge in Little Rock—Lee Rudofsky— sprang from the Federalist Society. He ruled in this matter that there was no expressed authority for individual lawsuits, only Justice Department lawsuits, in the Voting Rights Act.
He gave Attorney General Merrick Garland five days to take over the suit or, he said, he would be forced to throw out the case although there seemed to him to be strong merit in some of the arguments.
Garland sent a letter choosing not to have the Justice Department intervene—declining to yield to a political-pressure move from a jurist in a way that would have acquiesced to his irregular ruling— but saying correctly that the right of individuals to bring such actions had been long-established and consistently applied.
Rudofsky threw the case out as promised.
Last week, an all-Republican panel of judges in the 8th Circuit Court of Appeals affirmed Rudofsky’s ruling, 2 to 1. The prevailing votes came from a Trump nominee and a George W. Bush nominee. The lone vote not to affirm came from the Bush-nominated chief judge, Lavenski Smith, who, being Black and from Arkansas, conceivably had a special sensitivity.
What these Republican jurists have done is disregard precedent and behave in an activist way to make new law saying there never was any real law. They’ve neutered the people and vested all power in a centralized federal agency, which once was a notion derided by conservatives as big-government liberalism.
One wonders if partisan convenience isn’t the real passion. Electing more Blacks to legislatures likely would be bad for Republicans considering that odds favor Blacks being Democrats.
There seem to be four options in response to what these Republican-nominated judges have done.
One: The matter could be appealed from the panel to the full 8th Circuit Court of Appeals and eventually to the U.S. Supreme Court, which might take the case, probably to affirm the current ruling, owing to the Republican partisan domination of the high court.
Two: Black voters and their legal advocates could simply sit down and shut up and accept the rotten luck that they have been checkmated by conservative ideologues.
Three: The suit could be refiled strictly on a broader constitutional right, such as that Black voters in those instances where Rudofsky saw possible merit were denied equal protection under the law as mandated by the 14th Amendment.
Or, four: If this were indeed a matter of unavoidable compulsion for Republican judges based on their principle of strict application of the text, Republican members of Congress could do the right thing and perhaps win points from long-distrustful Black voters. They could pass a bill supplying a narrow amendment to the Voting Rights Act expressly granting the authorization for such suits by private citizens.
That would lessen any suspicion among Blacks that Republicans might be less interested in strict originalism and strict textualism than in reducing Black voters’ opportunities to elect Blacks to political offices—Democrats, odds are, which might be the point.