AAC
LEGAL CORNER
Redistricting and election reform: Courts rule on recent issues affecting voters
E
arly 2022 has brought court rulings affecting Ar- the Court stated, “there is a strong kansas elections officials in both state and federal merits case that at least some of the courts. On Feb. 17, 2022, U.S. District Court challenged districts in the Board Plan Judge Lee Rudofsky issued an order in a case filed are unlawful under § 2 of the Voting by the Arkansas State Conference NAACP and the Arkansas Rights Act,” it did not reach the merits Public Policy Panel against the Arkansas Board of Apportion- of the case. Instead, the Court ruled LINDSEY FRENCH General Counsel ment. On the same day, the Arkansas Supreme Court delivered that there is no private right of action an opinion on an appeal filed by Secretary of State John Thur- under which Plaintiffs could bring suit ston and the members of the Arkansas State Board of Election to enforce § 2 of the VRA, and that Commissioners to dismiss a suit against them brought by the the U.S. Attorney General must join the case within five days. League of Women Voters of Arkansas. A lawsuit was also filed The Attorney General did not join the case, and Plaintiffs apagainst the State in late March challenging the U.S. Congressio- pealed the case to the Eighth Circuit Court of Appeals the nal redistricting, but this article will focus on the first two cases. next day. The federal court’s To provide a very ruling is the more broad overview of complex of the two the Order, the Court he federal court’s ruling is the more complex of the and is also drawing ruled that it lacked national attention. subject-matter juristwo and is also drawing national attention. In the In the suit, Plaindiction in the case, tiffs, Arkansas State suit, Plaintiffs, Arkansas State Conference NAACP and Ar- because § 2 of the Conference NAACP VRA did not grant kansas Public Policy Panel through the American Civil Lib- private citizens the and Arkansas Public Policy Panel through authority to bring erties Union, allege that the 2021 reapportionment plan for the American Civil suit, only the U.S. Liberties Union, alAttorney General, the Arkansas House of Representatives “dilutes Black voting and therefore dislege that the 2021 reapportionment strength in violation of Section 2 of the Voting Rights Act.” missed the case. The plan for the Arkansas Court framed the isHouse of Represensue as “whether, untatives “dilutes Black der current Supreme voting strength in Court precedent, a violation of Section 2 of the Voting Rights Act.” This Section court should imply a private right of action to enforce § 2 of prohibits a state from imposing any voting standard “which the Voting Rights Act where Congress has not expressly proresults in a denial or abridgment of the right of any citizen vided one.” Plaintiffs pointed to previous U.S. Supreme Court of the United States to vote on account of race or color.” The rulings where they implied a private right of action to enforce Complaint states that the reapportionment plan has the result other sections of the VRA, both in 1969 (“Allen”) and in 1996 of diluting Black voting strength in Arkansas by creating 11 (“Morse”). However, the Court cited a string of recent SCOmajority-Black House districts out of 100 total districts, when TUS rulings starting in 2001 that disfavor judicially implied 16 percent of the state’s population is Black, and it is possible private rights of action where Congress did not explicitly creto create 16 geographically compact majority-Black districts. ate such rights. The Court held that Allen and Morse cannot In the original Complaint filed on Dec. 29, 2021, Plaintiffs be stretched to grant a private right to action for § 2 since sought to enjoin the State from implementing the plan for the they only concerned Sections 5 and 10, respectively, and any 2022 election cycle, which Defendants argued would cause discussion of § 2 in those cases is non-binding dicta. confusion and administrative issues. Plaintiffs later amended The Court did acknowledge an Eighth Circuit case in 1989, their request to allow the 2022 elections to take place with Roberts v. Wamser, in which that Court acknowledged a private the current plan, then have the Court order special elections right of action in § 2 of the VRA, but according to Judge Rufor all Arkansas House seats using a new map in 2023. While dofsky, it stopped short of announcing “a sweeping rule that all
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COUNTY LINES, WINTER 2022
