Picking up on a hint from two conservative Supreme Court Justices, a federal judge in Arkansas ruled Thursday that individual voters and private groups promoting their rights cannot sue in federal court to enforce the last significant part remaining of the 1965 Voting Rights Act. Only the U.S. Attorney General can do so, the judge decided.
U.S. District Judge Lee P. Rudofsky of Little Rock became the first judge in any federal court to give that interpretation to Section 2 of the famous law passed by Congress more than a half-century ago to protect the constitutional right of racial minorities to vote, under the Fifteenth Amendment.
The decision was the latest in a series of court rulings – by the Supreme Court and lower federal courts – to cut back on the scope of the Voting Rights Act. Section 2, which outlaws any voting requirement that reduces the equal right to vote based on race, remains the only effective part of the 1965 law after decisions over most of the past decade.
Even Section 2, though, has also been weakened by the Supreme Court. Just last July, the Court in a 6-to-3 decision in an Arizona case sharply narrowed the kind of voting restrictions that will be treated as illegal discrimination under Section 2. That section had become the most important part of the law after the Supreme Court in 2013 ended the duty of states with a history of racial bias in voting to get permission in Washington to change their voting laws in any way (a requirement under Section 5 of the law). Absent official clearance, no change could be put into effect.
Section 2 was never as strong as Section 5’s pre-clearance requirement, because a lawsuit can be filed under Section 2 only after a new voting law has been enacted.
Minority voters do have the option of challenging racial bias in voting by suing under either the Fifteenth Amendment or under the equality principles of the Fourteenth Amendment, but those lawsuits under the Constitution require proof that the bias was specifically intended – proof that is usually lacking or hard to come by. Section 2, however, only requires proof that a change in voting will have the practical result of reducing the chances of minorities being able to elect candidates of their choice – that is, that their equal right to vote will be diluted.
Judge Rudofsky ruled that he had no authority to decide a challenge, based on Section 2, to a new state law creating election districts for the lower house of the Arkansas state legislature. That lawsuit was filed by the Arkansas NAACP and another private civic organization.
Section 2, the judge found, does not give any private individual or organization a right to sue to enforce the law, because Congress has never specifically created such a right and has not created any remedy that could be achieved by private enforcement. While courts have sometimes found an “implied” right to sue to enforce some federal laws, the judge said that was not possible for Section 2. The law, by its specific terms, can be enforced only by the U.S. Attorney General, he declared.
The Justice Department, the judge noted, has recently increased its legal staff in a move to expand enforcement of voting rights for minorities, and – at the end of his opinion – he said he was confident the Department had the resources to enforce the law. The Department, though, had advised Judge Rudofsky in the Arkansas case that it understood Section 2 to allow for private enforcement, and remarked about having “limited resources.”
Judge Rudofsky appeared to have found the question about private enforcement in a one-paragraph opinion by Supreme Court Justices Neil M. Gorsuch and Clarence Thomas last summer, when the Court decided the Arizona case on the meaning of Section 2. Their opinion said the issue has been treated by lower courts as “an open question.” It had not been raised in that case, they remarked.
That kind of hint, not necessary to their vote with the majority in that case, is often the way Justices flag an issue that then leads to responses in lower courts. The issue had not been raised by state officials in response to the lawsuit in Arkansas against the state redistricting map.
A state redistricting board, following the 2020 Census, drew up a new map for election districts for the 100 seats in the state House of Representatives. Only 11 of those districts were crafted with black majorities, the lawsuit noted, even though blacks make up more than 16 percent of the state’s population. It would be possible, the challengers argued, to draw 16 districts with black majority populations.
Without a redrawn map, the lawsuit contended, the votes of black citizens in the state would be diluted illegally, under Section 2.
Judge Rudofsky ruled that the lack of a private right to sue meant a lack of jurisdiction to decide this case as is. He gave the U.S. Attorney General five days to enter the case to continue the challenge. If that does not occur, the lack of jurisdiction would require that the case be dismissed outright.
It is unclear whether the challengers will seek to appeal the ruling against their right to sue. They clearly could do so, though, if the case is dismissed or if the judge upholds the new districting map. The judge did remark in his ruling that, up to this point, he had the impression that the challengers had been making a “strong” case that some of the district lines did violate Section 2.
In the parts of his opinion discussing the nation’s history in dealing with voting rights of minorities, the judge said the Voting Rights Act had been “a force for good and progress in our society,” and said he personally believed that Congress should have given an explicit right for voters to sue under Section 2.
Judge Rudofsky, on the bench for about two years, is a former state official in Arkansas and had served as a lawyer in the Republican presidential campaign of Mitt Romney in 2012. He was appointed to the bench by President Trump.