U.S. Sen. Tom Cotton urged a federal court on Friday to dismiss part of a federal lawsuit challenging Arkansas' congressional redistricting map, which splits the state's most populous county into three separate districts.
The federal lawsuit accuses the state of diluting the Black vote in Arkansas' 2nd Congressional District through a gerrymandering tactic known as "cracking." The method is used to disperse voters of similar interests among populations with which they hold little in common.
The lawsuit, which names Gov. Asa Hutchinson, Secretary of State John Thurston and the state of Arkansas as defendants, comes amid a national debate over voting rights this year. Congressional redistricting maps have been the subject of litigation in many states nationwide, according to the Brennan Center for Justice.
Plaintiffs in the lawsuit said the new 2nd Congressional District boundaries removed a large bloc of southern and eastern Pulaski County, populated primarily by Black residents, and divided that bloc between the state's 1st and 4th Congressional Districts.
To equalize the population between the 2nd District and other districts, the plaintiffs said, lawmakers moved Cleburne County -- which, according to the U.S. Census Bureau is 96.5% white and 0.5% Black -- from the 1st Congressional District into the 2nd Congressional district.
In an amicus brief filed Friday in federal court in Little Rock, Cotton maintained that the motivations behind the changes to the map are partisan and thus not a matter for the courts to decide.
"If Democratic politicians wish to draw Arkansas's congressional map--as they previously did for decades--they should win elections instead of making a baseless allegation of racial gerrymandering," Cotton, a Republican, said in the amicus brief. The brief was filed by attorneys on Cotton's behalf.
"The State of Arkansas is under no obligation to produce a map drawn to maximize the Democrats' political advantage," Cotton said in the brief.
The redistricting map splits Pulaski County -- home to the largest Black population in the state -- into three separate congressional districts; the 1st District, the 2nd District and the 4th District. Historically, Pulaski County has been contained wholly within the 2nd District.
The plaintiffs in the redistricting lawsuit accuse the state of violating the U.S. Constitution, the Arkansas Constitution and the federal Voting Rights Act of 1965 by diluting Black voting power and influence through the newly drawn map.
In the brief, Cotton said there's a "high bar" for a racial gerrymandering claim. Plaintiffs must show that a redistricting plan was adopted with discriminatory intent and weakens "minority voting strength," he said, quoting a past court case.
The junior senator from Arkansas drew a distinction between racial gerrymandering and partisan gerrymandering, saying the latter is allowed under the constitution. He pointed to a 2019 Supreme Court decision --Rucho v. Common Cause -- in which he said the high court held "that partisan gerrymandering claims are nonjusticiable political questions that have no place in federal court."
A plaintiff must show that a redistricting plan was adopted with discriminatory intent and has the impact of weakening minority voting strength, he argued.
When the redistricting bills were presented to Hutchinson in October, he didn't sign them, saying he had serious concerns about the impact of the redistricting plan on minority voters. However, Hutchinson also declined to veto the bills -- which is a largely symbolic act in Arkansas as it only takes a simple majority to override a governor's veto. He allowed the law to take effect without his signature.
The lawsuit, filed by Little Rock attorney Richard Mays on behalf of the plaintiffs, list seven counts on which it alleges the state violated federal or state law and asks the federal court to order the General Assembly to draw up new House districts that do not dilute the Black voting strength in the 2nd District or for the court to devise or select another plan that keeps Black voting strength intact.
• Count 1 alleges a violation of Article I Section 2 of the U.S. Constitution
• Count 2 alleges a violation of the Assembly Clause and Petition Clause of the 1st Amendment to the U.S. Constitution
• Count 3 alleges a violation of the Privilege Clause and Immunity Clause of the 14th Amendment to the U.S. Constitution
• Count 4 alleges a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution
• Count 5 alleges a violation of the 15th Amendment to the U.S. Constitution
• Count 6 alleges a violation of Section II of the Voting Rights Act of 1965
• Count 7 alleges a violation of Article II Section 3 of the Arkansas Constitution
Cotton said in his brief to the court that Count 4 should be dismissed because the considerations behind the newly drawn Congressional map were not racial and were not intended to dilute Black voting strength.
"Racial and partisan gerrymandering are entirely different categories that are subject to different legal standards," Cotton said in the brief.
Mays said that Cotton's brief ignored the fact that to achieve the map the Legislature wanted drawn, it moved 22,000 Black voters out of the 2nd Congressional District in the south part of Pulaski County and replaced them with 22,000 white voters in Cleburne County.
"I guess you could say it's a coincidence," Mays said, "but it looks purely like racial discrimination to me, especially since the elections in the last several years in the 2nd Congressional District for congressman are getting closer and closer.
"They may claim it's political in order to bring in this Supreme Court decision in Rucho," Mays continued, "but it also has the effect of depriving the Black voters in the district of the opportunity to elect a minority or other candidate of their choice in the near future."
The case has been assigned to be heard by a three-judge panel consisting of U.S. District Judge James M. Moody, Chief U.S. District Judge D. Price Marshall Jr., and 8th Circuit Court Judge David Stas. No hearing date has been set for the matter yet.