In Voting Rights Gazette

“Your place for all the information you need about voting rights,

voter suppression, and voting trends to prepare you to fight in the 2022 election.”


March 8, 2022


Arkansas District Court Flaunts 55 Years of Precedent, Rules Private Parties Can’t Sue Under Voting Rights Act

On December 29, 2021, the Arkansas State Conference NAACP and Arkansas Public Policy Panel filed a lawsuit in the U.S. District Court for the Eastern District of Arkansas contending that Arkansas’ new state House map diluted Black voting strength in violation of Section 2 of the Voting Rights Act. On February 17, that judge ruled there was no private right of action under Section 2, the first time in 55 years that a court has questioned that right.

The ruling, by Judge Lee Rudofsky, agreed that there was evidence to suggest that the proposed House map was discriminatory, but because, in his opinion, Congress had not expressly provided for a private right of action in the Voting Rights Act, only the US attorney general could bring this kind of case.

On February 22, the Justice Department delivered a filing Tuesday to federal court in Little Rock that the agency stands by its contention that private parties may bring discrimination claims under Section 2 of the Voting Rights Act of 1965. The US attorney general’s office, however, declined to intervene in the case, thus allowing the disputed map to go forward.

The ruling is now being appealed to the Eighth Circuit Court of Appeals, a move that the lead lawyer admits is risky. “If we were to appeal and the Eighth Circuit were to rule against us, then it would become applicable in all of the states that are in the Eighth Circuit,” said lead attorney Bryan Sells.

“No court has ever held that private individuals may not enforce their rights under the VRA,” said Holly Dickson, executive director of the ACLU of Arkansas.”

The question of the right to private action under Section 2 of the Voting Rights Act, an apparently popular GOP talking point, has already been tested in two recent court cases. In December, the League of United Latin American Citizens filed a lawsuit against Texas Gov. Greg Abbott. U.S. District Judge David Guaderrama denied the motion by Abbott’s attorneys to dismiss the case on the grounds that no private right of action existed. And the issue came before a three-judge panel in Alabama that had two Trump appointees. It was unanimously rejected.

Rudofsky is a Trump appointee who has contributed in the past to both Gov. Asa Hutchinson’s and State Attorney General Leslie Rutledge’s re-election campaigns. Both are on the state’s redistricting committee. He was also employed by Rutledge as the state’s solicitor general before being nominated to the federal bench. Requests for him to recuse himself were turned down.

Supreme Court Turns Aside Two Redistricting Cases That Claimed State Courts Have No Voting Rights Jurisdiction

The Supreme Court on March 7 rebuffed two Republican attempts to invalidate state court rulings on the redistricting process. North Carolina and Pennsylvania, in separate emergency filings, claimed that state courts had no right to interfere with the process. 

In an emergency request filed with Chief Justice John Roberts, North Carolina Republicans claimed that a remedial map drawn by court-appointed special masters and adopted by a state trial court was unconstitutional interference in the work of state legislators. A state court had ruled the previous map was a partisan gerrymander that violated the North Carolina Constitution. State legislators contended that the Elections Clause of the U.S. Constitution only allows state legislatures to draw new congressional districts.

In the ruling, Justice Brent Kavanaugh stated that his vote against the GOP lawmakers’ request was guided by the fast-approaching midterm elections, not the underlying merits of their claim. He agreed with Justices Alito, Thomas, and Gorsuch that the issue should be taken up in the future.  

The decision also applies to the case from Pennsylvania. In that case, Republicans filed an emergency application with Justice Samuel Alito after a federal district court declined to temporarily block the congressional map recently adopted by the Pennsylvania Supreme Court

As with the North Carolina case, the Pennsylvania court system had taken over the redistricting process after the Republican Legislature and Democratic governor reached an impasse, with the governor vetoing the map. Republicans claimed state courts cannot take over a legislative process.

In North Carolina, the map most likely will give Democrats an additional House seat in 2023. The Pennsylvania map also may lead to the election of more Democrats.

Arizona GOP Sues to Eliminate All Vote-by-Mail

The Arizona Republican Party is asking the Arizona Supreme Court to strike down vote-by-mail because, they say, it flaunts state constitution provisions on how to hold an election. 

This is despite the fact that Arizona has allowed no-excuse absentee voting since 1991 and early voting since 1997. In 2007, the state also enacted legislation to create a permanent early voting list.

The lawsuit cites a provision of the state constitution concerning procedures by which citizens can propose their own laws.That provision states “electors may express at the polls their approval or disapproval of (a) measure.” Lawyers for the party claim that the inclusion of the phrase “at the polls” means the constitution requires ballots to be cast only at in-person polling places.

As a fallback, the suit also asks that the court to roll back the expansion of no-excuse absentee voting used since 1991, eliminate ballot drop boxes, prohibit ballot counting before election day, or prohibit voting absentee on initiatives and referenda if they decide not to invalidate vote-by-mail entirely.

Vote-by-mail was used by 90% of voters in the 2020 election.

The suit is modeled after a similar lawsuit in Pennsylvania. Republicans there won the initial case, but last week the lower court’s decision to curtail vote-by-mail was overturned by the Pennsylvania Supreme Court.

Michigan GOP Attempting to Bypass Voters to Secure Voter Suppression Laws

Republicans in Michigan are attempting to use a loophole in the state constitution to bypass voters and the governor to enact significant changes in the state’s voting laws.

It’s a provision in the Michigan Constitution that allows organizers to collect signatures to send an initiative straight to the legislature to be enacted into law without being placed on a ballot. Such initiatives also cannot be vetoed by the governor.

The proposed law is called Secure MI Vote. It would do away with the ability for a voter to sign an affidavit of identity in lieu of a state-issued ID, require a voter to submit a photo ID with an application for an absentee ballot, ban clerks from sending out absentee ballot applications to all voters, and eliminate the use of non-public funds, such as pandemic relief funds, for elections. The initiative is opposed by election clerks across the state.

The state party claims the initiative is not suppression, just a way to improve voter confidence in elections. The League of Women Voters of Michigan calls it an attempt to have a small number of people in Michigan dictate laws without voter input. It takes 340,047 signatures, or 8% of the total votes cast in the last gubernatorial election, to be successful. The deadline is June 1.

To fend this off, the same Democratic-led coalition that successfully passed a constitutional amendment in 2018 to liberalize voter registration and voting access are running their own petition drive to enshrine current voter ID rules into the state’s constitution. The proposed amendment would limit the ability of lawmakers to change voting requirements, allow nine days of early voting, allow for state funding of ballot postage and secure drop boxes, ban political parties from participating in audits, and more. If passed by voters, it would override much of the Secure MI Vote initiative. It requires 425,059 signatures, or 10% of the total votes cast in the last gubernatorial election, to get on the November ballot. The deadline for this effort is July 11.

Two Native American Nations Sue North Dakota Over Gerrymandering

The Turtle Mountain Band of Chippewa and the Spirit Lake Nation are suing North Dakota for splitting the nations apart and placing them into majority white areas instead of keeping them together, as required by Section 2 of the Voting Rights Act.

Leaders of the two nations contend that the Voting Rights Act requires the two nations be placed in a single district where, according to the lawsuit, they would “comprise an effective, geographically compact majority.”

The old legislative map had Turtle Mountain in a single district. Now, it has been split into two subdistricts, one of which would leave them in the minority, thus lessening their chance of electing their candidate of choice. With the Spirit Lake Nation, it has been grouped with counties to their north, where voters are more conservative.  The result, say leaders, is that the chance of a Native American candidate winning would be around 5%.  

According to Spirit Lake Tribal chairman Douglas Yankton, Sr., redistricting committee members were asked to come to either reservation before making decisions, but no one ever came. The new map, he says, “hinders us from even having a chance as Native Americans to run for offices.” 

Adds Jamie Azure, chairman of the Turtle Mountain Band of Chippewa, “Our voice is going to be muffled once again. It’s getting a little sickening, tell you the truth.” 

North Dakota is home to five federally recognized nations, with American Indian and Alaska Native people making up about 6% of the state’s population.

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