By Ruth Marcus
Deputy editorial page editor |
February 18, 2022 at 4:36 p.m. EST
Another Trump judge has struck, in another bid to defang the Voting Rights Act. This decision wouldn’t ordinarily merit much notice — it’s a single opinion by a district court judge. But it offers stark evidence of Donald Trump’s toxic judicial legacy, illustrates how conservative justices invite legal mischief to bubble up from the lower courts, and threatens what remains of one of the country’s proudest legislative achievements.
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The ruling came Thursday from U.S. District Judge Lee Rudofsky of Little Rock, a Harvard Law School graduate, Federalist Society member (of course) and former Arkansas solicitor general. Rudofsky found that Section 2 of the Voting Rights Act, which protects minority voters against unfair redistricting or other voting practices that have discriminatory effects, can only be enforced by the Justice Department. No civil rights groups, no individual voters need apply — I mean, are entitled to file suit.
This radical interpretation flies in the face of the history, purpose and longtime interpretation of the Voting Rights Act; it ignores congressional intent and long-standing Supreme Court rulings. And, if it were to stand, it would all but guarantee that the protections of the Voting Rights Act would be meaningless whenever there is a Republican in the White House.
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No judge has ever — ever — thrown out a Section 2 claim on the grounds that the law barred suits by private plaintiffs. Even Arkansas, whose newly redrawn state legislative district lines were at issue in the case before Rudofsky, didn’t make this argument. Rudofsky raised it on his own — and said he would toss the case unless the Justice Department decided to join it in the next five days.
This is part of an ugly pattern that has left the Voting Rights Act in tatters. In 2013’s Shelby County v. Holder, the Supreme Court’s conservative majority eviscerated Section 5 of the law, which required certain states to obtain advance approval for voting changes. That pretty much just left Section 2, which allows lawsuits after changes are enacted.
But last year, in an Arizona case, Brnovich v. Democratic National Committee, the high court engaged in a wholesale rewriting of Section 2 that drained it of effectiveness in cases involving voting rules and procedures. Just last week, intervening in an Alabama redistricting case, the court signaled new hostility to using Section 2 to challenge district lines that reduce the ability of minority voters to elect candidates of their choice.
Rudofsky’s ruling is a direct outgrowth of Brnovich. The majority opinion was so egregious — it “mostly inhabits a law-free zone,” Justice Elena Kagan wrote in dissent — that hardly anyone paid attention to a concurring opinion by Justices Neil M. Gorsuch and Clarence Thomas that said it was “an open question” whether private parties could sue under Section 2.
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As I’ve written before, the Gorsuch-Thomas concurrence was an especially dishonest piece of work. To buttress their bias against private suits, Gorsuch and Thomas cited a single appeals court case from 1981 that simply mentioned the issue. For decades, before and after a congressional rewrite of the law in 1982, the existence of a private right of action was assumed; Brnovich, which itself involved a lawsuit by a private party, cited nine other such cases. The question wasn’t ajar — not until Gorsuch and Thomas cracked it open.
Their gambit worked. When civil rights groups challenged Texas’s new voting law under Section 2, the state took up the Gorsuch-Thomas offer and argued that the plaintiffs didn’t have any right to sue. Texas lost, with the judge writing in December that “it would be ambitious indeed for a district court ... to deny a private right of action in the light of precedent and history.”
Not too ambitious for Rudofsky, who proclaimed he was just doing his job, even if it led to unfortunate results.
“The question,” he wrote, “is not whether the Court believes the Voting Rights Act has been and continues to be a force for good and progress in our society. (I do.) … The question is not whether the Court believes cases like this one are important to pursue. (I do.)
“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. The answer to this narrow question is no.”
This is a crock, dressed up in legal frippery.
Rudofsky is correct about two things. Section 2 doesn’t explicitly contain a private right to sue. And in recent years, the court has been increasingly reluctant to find such authorization when the statutory text doesn’t include it.
That’s not the end of the story, though. As the Justice Department told Rudofsky in a filing, “long-standing case law, the structure of the Voting Rights Act, the Act’s broad enforcement provisions, and authoritative sources of congressional intent confirm that there is a private cause of action under Section 2 to challenge such redistricting plans.”
Rudofsky not only contorted the law to knock down each of these arguments — he went beyond what Gorsuch and Thomas had said to insist that he had to dismiss the case even though Arkansas hadn’t raised the issue.
Why does all this matter? Because Rudofsky might be just the start. Because the federal government has limited resources to bring these voting rights cases and, under Republican administrations, demonstrably limited interest in doing so. And because, as Kagan put it last week, “a law this Court once knew to buttress all of American democracy” is increasingly being whittled into insignificance by activist judges who claim they are simply following the law, even as they strain to neuter it.
Deputy editorial page editor |
February 18, 2022 at 4:36 p.m. EST
Another Trump judge has struck, in another bid to defang the Voting Rights Act. This decision wouldn’t ordinarily merit much notice — it’s a single opinion by a district court judge. But it offers stark evidence of Donald Trump’s toxic judicial legacy, illustrates how conservative justices invite legal mischief to bubble up from the lower courts, and threatens what remains of one of the country’s proudest legislative achievements.
Opinions to start the day, in your inbox. Sign up.
The ruling came Thursday from U.S. District Judge Lee Rudofsky of Little Rock, a Harvard Law School graduate, Federalist Society member (of course) and former Arkansas solicitor general. Rudofsky found that Section 2 of the Voting Rights Act, which protects minority voters against unfair redistricting or other voting practices that have discriminatory effects, can only be enforced by the Justice Department. No civil rights groups, no individual voters need apply — I mean, are entitled to file suit.
This radical interpretation flies in the face of the history, purpose and longtime interpretation of the Voting Rights Act; it ignores congressional intent and long-standing Supreme Court rulings. And, if it were to stand, it would all but guarantee that the protections of the Voting Rights Act would be meaningless whenever there is a Republican in the White House.
ADVERTISING
No judge has ever — ever — thrown out a Section 2 claim on the grounds that the law barred suits by private plaintiffs. Even Arkansas, whose newly redrawn state legislative district lines were at issue in the case before Rudofsky, didn’t make this argument. Rudofsky raised it on his own — and said he would toss the case unless the Justice Department decided to join it in the next five days.
This is part of an ugly pattern that has left the Voting Rights Act in tatters. In 2013’s Shelby County v. Holder, the Supreme Court’s conservative majority eviscerated Section 5 of the law, which required certain states to obtain advance approval for voting changes. That pretty much just left Section 2, which allows lawsuits after changes are enacted.
But last year, in an Arizona case, Brnovich v. Democratic National Committee, the high court engaged in a wholesale rewriting of Section 2 that drained it of effectiveness in cases involving voting rules and procedures. Just last week, intervening in an Alabama redistricting case, the court signaled new hostility to using Section 2 to challenge district lines that reduce the ability of minority voters to elect candidates of their choice.
Rudofsky’s ruling is a direct outgrowth of Brnovich. The majority opinion was so egregious — it “mostly inhabits a law-free zone,” Justice Elena Kagan wrote in dissent — that hardly anyone paid attention to a concurring opinion by Justices Neil M. Gorsuch and Clarence Thomas that said it was “an open question” whether private parties could sue under Section 2.
Follow Ruth Marcus‘s opinionsFollow
As I’ve written before, the Gorsuch-Thomas concurrence was an especially dishonest piece of work. To buttress their bias against private suits, Gorsuch and Thomas cited a single appeals court case from 1981 that simply mentioned the issue. For decades, before and after a congressional rewrite of the law in 1982, the existence of a private right of action was assumed; Brnovich, which itself involved a lawsuit by a private party, cited nine other such cases. The question wasn’t ajar — not until Gorsuch and Thomas cracked it open.
Their gambit worked. When civil rights groups challenged Texas’s new voting law under Section 2, the state took up the Gorsuch-Thomas offer and argued that the plaintiffs didn’t have any right to sue. Texas lost, with the judge writing in December that “it would be ambitious indeed for a district court ... to deny a private right of action in the light of precedent and history.”
Not too ambitious for Rudofsky, who proclaimed he was just doing his job, even if it led to unfortunate results.
“The question,” he wrote, “is not whether the Court believes the Voting Rights Act has been and continues to be a force for good and progress in our society. (I do.) … The question is not whether the Court believes cases like this one are important to pursue. (I do.)
“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. The answer to this narrow question is no.”
This is a crock, dressed up in legal frippery.
Rudofsky is correct about two things. Section 2 doesn’t explicitly contain a private right to sue. And in recent years, the court has been increasingly reluctant to find such authorization when the statutory text doesn’t include it.
That’s not the end of the story, though. As the Justice Department told Rudofsky in a filing, “long-standing case law, the structure of the Voting Rights Act, the Act’s broad enforcement provisions, and authoritative sources of congressional intent confirm that there is a private cause of action under Section 2 to challenge such redistricting plans.”
Rudofsky not only contorted the law to knock down each of these arguments — he went beyond what Gorsuch and Thomas had said to insist that he had to dismiss the case even though Arkansas hadn’t raised the issue.
Why does all this matter? Because Rudofsky might be just the start. Because the federal government has limited resources to bring these voting rights cases and, under Republican administrations, demonstrably limited interest in doing so. And because, as Kagan put it last week, “a law this Court once knew to buttress all of American democracy” is increasingly being whittled into insignificance by activist judges who claim they are simply following the law, even as they strain to neuter it.
