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A blow-up figure lies on the ground as the Declaration for American Democracy coalition hosts a rally calling on the Senate to pass the For the People Act, outside the Supreme Court in Washington on Wednesday, June 9, 2021. Caroline Brehman/CQ-Roll Call, Inc via Getty Images
A Trump-appointed judge handed down a decision on Thursday that, if embraced by the Supreme Court, would render crucial safeguards against racial discrimination in elections virtually unenforceable — particularly during Republican administrations.
To be clear, this is a decision by a federal trial judge, which means that it must survive contact with an appeals court and the Supreme Court before its narrow approach to voting rights becomes the law of the land. Nevertheless, the Supreme Court’s 6-3 Republican majority is typically hostile to voting rights suits, so there is a very real risk that they will agree with this trial judge.
The case is Arkansas State Conference NAACP v. Arkansas Board of Apportionment, and the plaintiffs claim that Arkansas’s statehouse maps are racially gerrymandered in violation of the Voting Rights Act (VRA), the landmark civil rights law that probably did more than any other statute to end Jim Crow. Among other things, the plaintiffs note that the maps contain only 11 (out of 100) majority-Black districts, even though Black voters make up more than 16 percent of the state’s population.
But Lee Rudofsky, the Trump judge assigned this case, barely engages with the substance of this racial gerrymandering claim. Instead, Rudofsky concludes that such a claim “may be brought only by the Attorney General of the United States” and not by private plaintiffs.
Private suits enforcing the VRA have been a fixture of American civil rights law since the 1960s. As the Supreme Court explained in Allen v. State Board of Elections (1969), “the achievement of the Act’s laudable goal could be severely hampered … if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General.” Among other things, “the Attorney General has a limited staff and often might be unable to uncover quickly” new state policies that target voters of color.
And a law that only the attorney general can enforce will be utterly useless if the attorney general does not choose to enforce it. During the entire Trump administration, for example, the Justice Department’s voting section brought only one lawsuit alleging discrimination under the Voting Rights Act — and that was a fairly minor suit alleging that the method of electing school board members in a South Dakota school district “dilutes the voting strength of American Indian citizens.”
Nevertheless, Rudofsky now seeks to neutralize one of the most important protections against racism in American elections.
The most straightforward reason why Rudofsky is wrong is that the Supreme Court determined that he is wrong in Morse v. Republican Party of Virginia (1996). In that case, a majority of the Court concluded that Section 2 of the VRA, the provision at issue in Arkansas State Conference, is enforceable through private lawsuits.
Additionally, while the Voting Rights Act does not contain any language which explicitly states that “private plaintiffs may sue under this law,” it does contain some provisions which make no sense unless private suits are permitted. One provision, for example, states that federal courts hearing VRA lawsuits shall exercise their jurisdiction “without regard to whether a person asserting rights” under the VRA has exhausted other potential legal remedies.
It makes no sense for the VRA to contain a provision referring to “a person asserting rights” in a Voting Rights Act lawsuit unless the law permits such a person to assert those rights in the first place.
Rudofsky’s primary argument is that Allen and Morse do not apply because the Supreme Court has since abandoned their approach to interpreting federal laws, and that the VRA must be retroactively reinterpreted in line with this new approach.
The Voting Rights Act became law in 1965. One year earlier, in J.I. Case v. Borak (1964), the Supreme Court established that federal statutes should generally be read broadly to permit enforcement by private lawsuits. “It is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose,” Borak explained.
Thus, the Congress that wrote the Voting Rights Act operated under the assumption that it did not need to explicitly write a private right to sue into the statute because the Supreme Court had recently signaled that private suits are permitted when a federal law would be ineffective without them. The Court validated this reading of the VRA four years later in Allen.
Then, nearly four decades after Congress wrote the VRA — and 19 years after Congress enacted important amendments to the law in 1982 — the Court decided Alexander v. Sandoval (2001), which laid out a much stingier approach to private lawsuits. Sandoval does contain some language that undermines the case for permitting private suits under the Voting Rights Act.
Sandoval, for example, states that “statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons’” — so if a federal law uses language like “no state shall do X” instead of “all persons have a right to X,” courts typically should not permit private lawsuits under that statute.
The relevant provision of the Voting Rights Act uses both kinds of language — it starts with the phrase “no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State,” but then goes on to forbid any voting practice “which results in a denial or abridgement of the right of any citizen of the United States to vote.”
But there are good reasons not to read Sandoval too restrictively with respect to the VRA. One is that, while Sandoval does lay out some interpretive guidelines that courts can use to determine whether a particular law permits private lawsuits, Sandoval also states that “the judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy,” and that “statutory intent on this latter point is determinative.”
And, in this case, there is overwhelming evidence that Congress intended the Voting Rights Act to contain a private right that is enforced by private lawsuits. Again, Congress wrote the law against the backdrop of decisions like Borak, which emphasized that private parties should generally be allowed to sue to enforce their legal rights. Federal courts have understood the law to permit private suits at least as far back as 1969, when the Court decided Allen. And Congress has amended the VRA multiple times, but it’s never questioned the longstanding assumption that the law permits private lawsuits.
Justice John Paul Stevens, moreover, anticipated Rudofsky’s objection to an enforceable Voting Rights Act in an opinion he wrote in the Morse case. Recognizing that the law governing when private parties are allowed to sue under federal statutes was in flux in 1996, when Morse was decided, Stevens acknowledged that a decision proving that only the attorney general may enforce the law “might have been correct if the Voting Rights Act had been enacted recently.” But such a decision would fail “to give effect to our cases holding that our evaluation of congressional action ‘must take into account its contemporary legal context.’”
Stevens, in other words, relied on a fairly basic rule of fundamental fairness. Courts should not interpret a statute written in 1965 using interpretive rules that the Court came up with years later. If Congress had known about Sandoval when it wrote the Voting Rights Act, it would have known to use more explicit language. But Congress did not have a time machine.
In any event, Rudofsky is not alone in his desire to burn down a landmark civil rights statute because lawmakers in 1965 failed to predict the future. Concurring in Brnovich v. DNC (2021), Justice Neil Gorsuch claimed that “our cases have assumed — without deciding — that the Voting Rights Act of 1965 furnishes an implied cause of action under §2,” and suggested that he would eliminate this right of private parties to sue under the law.
Gorsuch’s opinion was joined by only one other justice, Justice Clarence Thomas. So it is not the law. But given this Supreme Court’s record of hostility toward the Voting Rights Act, there is no guarantee that Gorsuch won’t find five votes to affirm Rudofsky’s decision.
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