Federal judge gives U.S. Justice Department 5 days to join Arkansas redistricting lawsuit

FILE - People crowd the new state legislative redistricting maps to get pictures after the Arkansas Board of Apportionment voted to accept them Friday, Oct. 29, 2021, at the state Capitol. (Arkansas Democrat-Gazette/Staci Vandagriff)
FILE - People crowd the new state legislative redistricting maps to get pictures after the Arkansas Board of Apportionment voted to accept them Friday, Oct. 29, 2021, at the state Capitol. (Arkansas Democrat-Gazette/Staci Vandagriff)

U.S. District Court Judge Lee Rudofsky issued an order Thursday dismissing a lawsuit arguing that Arkansas' new state House districts violate federal civil rights law.

Rudofsky is overseeing the redistricting lawsuit, which was filed Dec. 29 by American Civil Liberties Union attorneys on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel against the three-member Board of Apportionment.

That board consists of Republicans Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston, and the suit argues that the district map violated the 1965 Voting Rights Act by diluting the influence of Black voters.

The order from Rudofsky effectively dismissed the plaintiffs from the lawsuit, but opened the door for the U.S. attorney general, saying he will wait "five calendar days" for the federal government to intervene.

The order holds that private litigants cannot sue to enforce the Voting Rights Act of 1965, "Only the Attorney General of the United States can bring a case like this one."

"Today's Order simply means that the Attorney General of the United States must be the plaintiff in such an enforcement action," Rudofsky wrote.

For the ACLU, the order is a blow to its case, as its role as a plaintiff in the lawsuit is over, unless Rudofsky's order is overturned on appeal.

The ACLU said in a news release that dismissing the right of private litigants in a lawsuit involving the Voting Rights Act "denies Black Arkansans an equal opportunity to participate in the political process and elect candidates of their choice, as required under federal law."

"The court held that there is a strong case that some of the challenged districts currently in the board plan are unlawful under Section 2 of the Voting Rights Act, but that no one but the federal government can now sue for violation of the Voting Rights Act of 1965," Holly Dickson, executive director of the ACLU of Arkansas, said in a statement.

Rudofsky did write in his ruling that "there is a strong merits case that at least some of the challenged districts in the Board Plan are unlawful," but noted "the Court cannot reach the merits."

The plaintiffs asked Rudofsky to issue a preliminary injunction to prevent the maps from taking effect for the May 4 election or require the state to run state House elections again in 2023 with new maps.

But with the candidate filing period beginning Tuesday, it will be more difficult for a judge to throw out Arkansas' legislative maps for elections in 2022. Severe winter weather also delayed proceedings, pushing the court to work late hours and into a weekend.

In a statement, Rutledge said Rudofsky's order amounted to "effectively dismissing" the lawsuit.

"I am extremely pleased with the district court's decision effectively dismissing the plaintiffs' frivolous request to order new House district maps for the 2022 election," Rutledge said. "Arkansans can now move forward with choosing their elected representatives."

The ACLU argued that the new state House maps diluted the strength of Black voters, particularly in Central Arkansas, the Upper Delta and the Lower Delta by reducing the number of Black-majority districts.

The lawsuit argued that only 11 of the state's 100 House districts had a majority Black population, while African-Americans make up 16.5% of the population and 15.5% of the voting age population in Arkansas.

Attorneys from Rutledge's office argued that the redrawn state House districts didn't violate federal civil rights laws, saying that race is one of many factors taken into account during the redistricting process.

Federal law requires states to consider how their maps will affect the political influence of minority voters when drawing legislative maps. The staff from the Board of Apportionment said there were other factors to consider during redistricting such as the compactness of the districts and reducing the splitting of cites and counties into multiple districts.

Instead, the plaintiffs will have to wait as to whether the U.S. Attorney General Merrick Garland will join the lawsuit. The U.S. Department of Justice wrote in a statement of interest that it filed with the court that it had limited resources to enforce the Voting Rights Act and that private parties needed to be able to file suit.

But Rudofsky contended that he is "confident that the Attorney General of the United States has the resources to litigate this Voting Rights Act case."

"The Attorney General doesn't have resources to bring every lawsuit out there,"said Bryan Sells, one of the lead plaintiff attorneys.

The order comes as many states have seen court challenges to newly drawn state and federal legislative districts.

Debates over gerrymandering, where lawmakers purposely draw up districts to unfairly favor one political party over another, starts over redistricting after each decennial census when states are required to redraw their districts.

On Feb. 7, the U.S. Supreme Court voted 5-4 to reinstate Alabama's congressional map, after a federal court panel ordered the state to redraw its districts, citing the Voting Rights Act.

The Supreme Court's ruling came just as the plaintiffs and the defense wrapped up their arguments in the lawsuit over Arkansas' state House districts, with Rudofsky noting in court the Supreme Court ruling after an 11-hour hearing.

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