For right-wing litigants, the line of communication has never been clearer. Their ideologically aligned Supreme Court justices send messages—“trial balloons,” “bat signals”—in agreements and dissents, raising a subject that might be the responsibility of a motivated lawyer to approach a case.
This time, a fellow judge took the hint. U.S. District Judge Lee Rudofsky of Arkansas, a Donald Trump appointee, enthusiastically echoed the misgivings of Justices Neil Gorsuch and Clarence Thomas that private litigants could never bring suits under Section 2 of the Voting Rights Act – despite the fact that they did it. so for decades.
Section 2 governs vote dilution in redistricting – where states, usually red, pack minority voters into a single district or spread them out so their voting power is diffused – and is the most effective tool remaining to fight racial gerrymandering in federal courts. Nearly all of these cases are brought by “private litigants,” often good government groups and a handful of individual voters in the targeted area.
Earlier this week, 8th Circuit Court of Appeals Judge and fellow Trump appointee David Stras enthusiastically echoed Rudofsky’s reasoning in a ruling brimming with contempt for voting rights groups (in which he was joined by Judge Raymond Gruender, appointed by George W. Bush). ). Both Stras and Gruender were on the short list of Supreme Court nominees during the Trump administration.
“District boundary disputes start like clockwork every ten years after the United States census,” Stras said, saying that advocacy groups fighting what they claimed was a map of the Arkansas House had “sued almost everyone who had anything to do with this under § § 2 of the Voting Rights Act.
Stras and Gruender agreed with Rudofsky that individuals could not sue under Section 2. In fact, they wrote, only the U.S. attorney general could.
“Hundreds of Section 2 cases have been filed over the past several decades, and hundreds of federal judges have ruled on the merits of these cases without batting an eyelid,” Travis Crum, voting rights expert and associate professor of law at the University of Washington. in Saint Louis, told TPM. “But two 8th Circuit judges decided that these hundreds of other judges had narrowly missed the problem for decades.”
Both men rejected other related Federal Court rulings, Supreme Court guidance on the subject, and the legislative record, in which members of Congress have made it abundantly clear that they want the law to include a mechanism to individuals to pursue legal action.
Yet the chaos the ruling would unleash could prove too much even for the Roberts Court, with its history of antagonism toward minority voting rights. If the Supreme Court allows the 8th Circuit’s decision, the VRA cases would collapse. Even in Democratic administrations, the lack of lawyers and resources in the Justice Department’s Voting Rights Section would make it difficult to take over the caseload currently borne by private plaintiffs. Under Republican administrations, enforcement would likely cease altogether.
“We’re tracking over 200 redistricting cases just after this cycle alone, and the DOJ is involved in three. They didn’t even bring any of them, they just intervened in these three,” Doug Spencer, an election law and redistricting expert at the University of Colorado Law School in Boulder who directs All About Redistricting.
VRA cases are also expensive and time-consuming, meaning that many cases that could go to trial do not, even when the private right of action is fully intact.
“Private litigators only file lawsuits in the most egregious cases where they are virtually guaranteed to win – we are far from the border of extreme cases where they sometimes win, sometimes lose,” Spencer added.
If the 8th Circuit panel’s decision were to stand, it would also have repercussions in other jurisdictions that are currently embroiled in intense and critical redistricting litigation, on which control of the House in 2024 may well hinge. In Louisiana, one of the states where officials have been extremely creative in their attempts to delay the allocation of an additional Democratic seat until after the election, officials are already citing the 8th Circuit decision to request for the 5th Circuit to reconsider the lawsuit against its congressional representative. Plans.
There is also the issue of the aforementioned decades of VRA cases, which were litigated and decided on the basis that individuals could bring these suits.
“States that lost cases to private litigants five years ago could ask judges to reverse or overturn those decisions,” Spencer said. “This will turn the last 50 years of operation upside down.”
For these reasons, plus Justice Brett Kavanaugh’s sporadic opposition to election chaos and Chief Justice John Roberts’ majority opinion in last term’s major VRA case, experts generally doubt that the Supreme Court has the necessary votes to uphold the 8th Circuit’s decision.
But this case is a nice microcosm of the dynamics we’ve seen roiling the justice system since Trump’s election: Trump super-activist judges willing and eager to dispense with precedent in favor of political goals, justices of the Supreme Court in conversation with these justices in their briefs. and the intense interest of right-wing actors in winning legal battles that help Republicans maintain minority rule.
“This all ties into a shift in the conversation about whether we want to operate our country as a liberal democracy where everyone has a voice,” Spencer said, “or as another system of leadership that is much more authoritarian and less shaped by the will of the State. people.”
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