Legal Corner

Redistricting and election reform: Courts rule on recent issues affecting voters

Early 2022 has brought court rulings affecting Arkansas elections officials in both state and federal courts. On Feb. 17, 2022, U.S. District Court Judge Lee Rudofsky issued an order in a case filed by the Arkansas State Conference NAACP and the Arkansas Public Policy Panel against the Arkansas Board of Apportionment. On the same day, the Arkansas Supreme Court delivered an opinion on an appeal filed by Secretary of State John Thurston and the members of the Arkansas State Board of Election Commissioners to dismiss a suit against them brought by the League of Women Voters of Arkansas. A lawsuit was also filed against the State in late March challenging the U.S. Congressional redistricting, but this article will focus on the first two cases.

The federal court’s ruling is the more complex of the two and is also drawing national attention. In the suit, Plaintiffs, Arkansas State Conference NAACP and Arkansas Public Policy Panel through the American Civil Liberties Union, allege that the 2021 reapportionment plan for the Arkansas House of Representatives “dilutes Black voting strength in violation of Section 2 of the Voting Rights Act.” This Section prohibits a state from imposing any voting standard “which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The Complaint states that the reapportionment plan has the result of diluting Black voting strength in Arkansas by creating 11 majority-Black House districts out of 100 total districts, when 16 percent of the state’s population is Black, and it is possible to create 16 geographically compact majority-Black districts.

In the original Complaint filed on Dec. 29, 2021, Plaintiffs sought to enjoin the State from implementing the plan for the 2022 election cycle, which Defendants argued would cause confusion and administrative issues. Plaintiffs later amended their request to allow the 2022 elections to take place with the current plan, then have the Court order special elections for all Arkansas House seats using a new map in 2023. While

the Court stated, “there is a strong merits case that at least some of the challenged districts in the Board Plan are unlawful under § 2 of the Voting Rights Act,” it did not reach the merits of the case. Instead, the Court ruled LINDSEY FRENCH that there is no private right of action General Counsel under which Plaintiffs could bring suit to enforce § 2 of the VRA, and that the U.S. Attorney General must join the case within five days. The Attorney General did not join the case, and Plaintiffs appealed the case to the Eighth Circuit Court of Appeals the next day. To provide a very broad overview of The federal court’s ruling is the more complex of the two and is also drawing national attention. In the the Order, the Court ruled that it lacked subject-matter jurisdiction in the case, suit, Plaintiffs, Arkansas State Conference NAACP and Ar- because § 2 of the VRA did not grant kansas Public Policy Panel through the American Civil Lib- private citizens the erties Union, allege that the 2021 reapportionment plan for authority to bring suit, only the U.S. the Arkansas House of Representatives “dilutes Black voting Attorney General, and therefore disstrength in violation of Section 2 of the Voting Rights Act.” missed the case. The Court framed the issue as “whether, under current Supreme Court precedent, a court should imply a private right of action to enforce § 2 of the Voting Rights Act where Congress has not expressly provided one.” Plaintiffs pointed to previous U.S. Supreme Court rulings where they implied a private right of action to enforce other sections of the VRA, both in 1969 (“Allen”) and in 1996 (“Morse”). However, the Court cited a string of recent SCOTUS rulings starting in 2001 that disfavor judicially implied private rights of action where Congress did not explicitly create such rights. The Court held that Allen and Morse cannot be stretched to grant a private right to action for § 2 since they only concerned Sections 5 and 10, respectively, and any discussion of § 2 in those cases is non-binding dicta. The Court did acknowledge an Eighth Circuit case in 1989, Roberts v. Wamser, in which that Court acknowledged a private right of action in § 2 of the VRA, but according to Judge Rudofsky, it stopped short of announcing “a sweeping rule that all

voters can enforce § 2 of the Voting Rights Act.” The Court also dismissed Plaintiffs’ contention that it should ignore whether there is a private right of action concern, because the Defendants did not raise that defense. Leaning on a weeks-old Eighth Circuit case that seems to conflict with previous SCOTUS precedent, the Court said that the matter is jurisdictional, and therefore is not waived by Defendants’ failure to raise the issue.

The Court acknowledged in its Order that Plaintiffs will likely appeal to the Eighth Circuit Court of Appeals for clarification at the appellate level, which they did. It is worth noting that U.S. Supreme Court Justice Neil Gorsuch, joined by Justice Clarence Thomas, in a recent concurring opinion wrote that SCOTUS cases have “assumed — without deciding” that the VRA contains an implied cause of action under § 2, and said that “[l]ower courts have treated this issue as an open question.” It will be interesting to see, if appealed to the highest Court, whether Justice Gorsuch and his colleagues have any appetite to tackle that question head on, a process that could stretch out over a year.

The Arkansas Supreme Court opinion issued on the same day was less favorable for the State. It ruled on an appeal from Pulaski County Circuit Judge Wendell Griffen, who denied the state officials’ motion to dismiss. The League of Women Voters of Arkansas sued Secretary of State John Thurston and the members of the Arkansas Board of Election Commissioners to enjoin four Acts of the 93rd General Assembly: Act 736, the “Absentee Application Signature Match Requirement;” Act 973, the “In-Personal Ballot Receipt Deadline;” Act 249, the “Voter ID Affidavit Prohibition;” and Act 728, the “Voter Support Ban” (acts as described by the League in the Complaint). The League argues that the Acts “individually and cumulatively impose an unconstitutional burden on the right to a free and equal election, the right to equal protection of the law, and the right to free speech and assembly enshrined in the Constitution of Arkansas,” and should be found unconstitutional.

Below is a short summary of the alleged violations of each Act of 2021:

• Act 736 — Rep. Mark Lowery; requires election officials to match signatures on absentee ballot applications to that on their voter registration applications before issuing an absentee ballot. Plaintiffs point to the “error-prone and arbitrary nature of signature matching” and the lack of training for election officials in hand-writing analysis. • Act 973 — Sen. Kim Hammer; restricts the period during which voters may return absentee ballots and sets different deadlines for those returning absentee ballots

in person as opposed to by mail. • Act 249 — Rep. Lowery; removes the “loophole” around voter identification requirements that allowed a voter without identification to sign an affidavit verifying their identity and voter registration. • Act 728 — Sen. Hammer; prohibits anyone other than voters from being within 100 feet of the entrance to a polling place, which the League claims criminalizes providing support to voters waiting in long lines to vote.

State Defendants filed a motion to dismiss in circuit court alleging that Defendants were entitled to sovereign immunity, among other things. The Supreme Court only considered the claim of sovereign immunity since the lower court did not reach the merits of the lawsuit. State Defendants asserted that the League failed to plead sufficient facts to allege the unconstitutionality of the Acts and failed to plead sufficient facts upon which relief could be granted. The League argued that to deny Defendants sovereign immunity, the Court need only determine whether they sufficiently alleged a violation of constitutional rights and sought only equitable relief.

In 2018, the Court ruled in Martin v. Haas that because Haas asserted a constitutional rights violation and sought injunctive relief rather than money damages, Martin was not entitled to sovereign immunity as a defense. In this case, the Court said the League also alleges that the four Acts violate multiple provisions of the Arkansas Constitution and seeks injunctive rather than monetary relief. Therefore, the Court ruled that State Defendants were not entitled to sovereign immunity as a defense and upheld the lower court’s denying Defendants’ motion to dismiss. The lower court conducted a four-day bench trial on the merits of the case as a result.

Judge Wendell Griffin announced his decision from the bench. He ruled that the Plaintiffs proved by a preponderance of the evidence that the Acts involve the fundamental right to vote and must be reviewed using the strict scrutiny standard. He found that the State’s concerns about election integrity and insecurity were based entirely on conjecture and speculation, rather than proof. As such, Judge Griffin declared each Act unconstitutional and granted a permanent injunction. The State has appealed the decision and asked the Appellate Court to stay the lower court’s ruling to allow election officials to implement the Acts up until (and if) the lower court’s ruling is upheld. On April 1, the Arkansas Supreme Court granted the State’s motion for an emergency stay of the lower court’s injunction.