ACLU brief argues judge erred in dismissing Arkansas redefinition map challenge

The American Civil Liberties Union has filed the opening brief of an appeal of a federal court ruling that dismissed a challenge to a new Arkansas state map that opponents say discriminates against black voters by diluting their voting power.

The ACLU’s brief was filed Monday in the St. Louis 8th Circuit Court of Appeals, which will hear the appeal. The ACLU announced the filing of the brief in a press release Tuesday afternoon.

The Feb. 17 decision, handed down by U.S. District Judge Lee Rudofsky, ruled that private citizens cannot sue to protect their voting rights under Section 2 of the Voting Rights Act, believing that only the Attorney General of the United States can bring an action under the law.

Rudofsky said in his ruling that evidence suggested the House’s new map discriminates against black voters, but he ruled that the plaintiffs had no “private right of action” to sue in court. justice because Congress had not expressly provided one in the Voting Rights Act. The private right of action is the legal principle that allows a private citizen to enforce a law through the courts.

“Only the United States Attorney General can bring a case like this,” he said.

Rudofsky’s decision upended decades of precedent allowing individuals to remedy violations of voting rights under the Voting Rights Act. When the Department of Justice advised the court that it had no intention of intervening, the case was dismissed despite the federal government’s assertion in that case that private parties are permitted to sue in court. under the Voting Rights Act.

The ACLU argues in its opening brief that Rudofsky’s order was in error and that a private right of action exists to enforce voting rights under Section 2 of the Voting Rights Act. despite Congress’ omission of an express right of action. In an addendum to the brief, he said not only have decades of precedent upheld a private right of action, but recent lower court decisions have upheld that right as well.

The original lawsuit was filed Dec. 29, 2021, by the ACLU on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel a month after a newly drawn map of the Arkansas House District was approved by the State Board of Dispatch, which consists of the Governor, Attorney General and Secretary of State. The lawsuit named the Arkansas Allocation Council and Governor Asa Hutchinson, Attorney General Leslie Rutledge, and Secretary of State John Thurston as defendants in the case.

At the heart of the lawsuit was the drawing of 11 of House’s 100 districts as majority black districts – a reduction of one from the previous map – despite Arkansas’ black population having increased to 16.5 % of population since 2010 census.

In dismissing the lawsuit, Rudofsky wrote that the issue before the court was not whether the Voting Rights Act was a force for good and progress in American society, or whether Congress should have expressly included a private right of action, or even if the matter was important. continue, regardless of personal beliefs.

“The narrow question before the court is only whether, under current Supreme Court precedent, a court should imply a private right of action to enforce [Section] 2 of the Voting Rights Act where Congress has not expressly provided one,” Rudofsky wrote. “The answer to this narrow question is no. Only the United States Attorney General can bring a case like this. »

Rudofsky appeared to base his opinion on an opinion written by Supreme Court justices Neal Gorsuch and Clarence Thomas in Brnovich v. the Democratic National Committee in Arizona, in which Gorsuch and Thomas agreed with the majority of the court to quash a 9th Circuit Court ruling that Arizona’s 2016 law prohibiting third parties from delivering absentee ballots to the county clerk’s office.

Rudofsky wrote that Gorsuch and Thomas, in a concurring opinion, “wrote separately to ‘report’ and issue ‘not to decide'[d]'” by the Supreme Court that day: the existence or non-existence of a private right of action for enforcement [Section] 2.”

“Our cases have assumed – without deciding – that the Voting Rights Act 1965 provides an implied cause of action under [Section] 2,” Gorsuch and Thomas wrote. “The lower courts treated this as an open question.”

Rudofsky wrote that over the past few years “current Supreme Court case law on implied private rights of action is notoriously tight”, and said the High Court has recently ruled against implied private rights of action in proceedings under Section 2.

In the ACLU press release, Kymara Seals, policy director for the Arkansas public policy group, vowed to continue to fight Rudofsky’s decision.

“Judge Rudofsky’s decision to bar private citizens from taking legal action to protect their rights as guaranteed under the Voting Rights Act flies in the face of 50 years of precedent and leaves black and Browns from Arkansans unprotected in cases like this,” Seals said in the Release. “Arkansas’ black population has grown, but our representation hasn’t. And we think that was very intentional.”

Barry Jefferson, political action chairman for the Arkansas State Conference of the NAACP, called the decision so sweeping that there was no choice but to appeal.

“This wanton violation of the sacred right to choose the voice that best represents one’s community is in direct conflict with American democracy,” Jefferson said. “Unfair redistricting practices must be exposed at every turn.”

In its appeal, the ACLU requested 20 minutes of oral argument in court. According to court documents, Nicholas Bronni, an attorney with the Arkansas Attorney General’s Office, will argue for the Allocation Council, and Adriel Cepeda Derieux, an attorney with the ACLU Foundation’s New York office, will argue for the Conference of the Allocation. State of Arkansas NAACP and Arkansas Public Policy Panel.

On Tuesday, through a spokesperson, Rutledge said she was looking forward to the call.

“The Attorney General will review their briefing and looks forward to continuing to successfully defend Arkansas’ redistricting process,” spokeswoman Stephanie Sharp said.

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