The American Civil Liberties Union of Arkansas said it will wait to appeal Thursday's order from a federal judge that dismissed its lawsuit challenging Arkansas' newly drawn state House districts.
U.S. District Judge Lee Rudofsky issued an order Thursday essentially dismissing the ACLU's lawsuit, which argues Arkansas' new state House districts violate the 1965 Voting Rights Act.
Instead, the lawsuit, brought by ACLU attorneys on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel, would need to be brought by the U.S. attorney general, Rudofsky said.
"Today's Order simply means that the Attorney General of the United States must be the plaintiff in such an enforcement action," Rudofsky wrote in his order.
The order gives the U.S. Department of Justice five days to respond before Rudofsky issues an official order for dismissal.
The Department of Justice did not respond to a request to comment Friday.
Gary Sullivan, the legal director of the ACLU of Arkansas, said the nonprofit will wait to file an appeal, saying Rudofsky is still waiting for the U.S. attorney general's response before he issues an order dismissing the case.
"He has not ruled on the merits, so he has not said what his ruling will be if the Department of Justice gets involved," Sullivan said.
The ACLU filed the lawsuit against the Arkansas Board of Apportionment on Dec. 29, claiming it had racially gerrymandered Arkansas' legislative districts. The Board of Apportionment consists of three state constitutional officers: Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston. All three are Republicans.
In court, the plaintiffs argued the Board of Apportionment diluted the influence of Black voters by reducing the number of Black majority state House districts.
Only 11 of Arkansas' 100 House districts had a majority Black population while Blacks make up 16.5 % of the population and 15.5% voting-age population in Arkansas, according to the latest U.S. census.
Attorneys from the ACLU asked Rudofsky to issue a preliminary injunction to prevent the new district maps from taking effect for the 2022 election or order the state to run elections again in 2023 with a new map.
After Rudofsky filed the order Thursday, Rutledge issued a statement saying it amounted to "effectively dismissing" the ACLU's case.
With the candidate filing period in Arkansas beginning Tuesday, Sullivan admits Arkansas is unlikely to get a new state House district map even if the plaintiffs win on appeal.
"From the court's ruling it appears the districts are set for the fast approaching filing period and elections," Gov. Asa Hutchinson said in a statement. "I am grateful for the timeliness of the Judge's decision and the decision is good news for the candidates and voters."
Rudofsky's decision hinged on whether Section Two of the Voting Rights Act contained a private right of action, meaning the law could be enforced through lawsuits brought by individual people or groups.
Rudofsky's order argued, "Only the Attorney General of the United States can bring a case like this one."
"If Congress wants private litigants to be able to enforce federal statutes, Congress should express that desire in the statute," Rudofsky wrote.
For the plaintiffs, Rudofsky's order is a blow as it dismisses their ability to enforce the Voting Rights Act through a lawsuit.
"In the 50 years since the Voting Rights Act was passed, no federal court has ever held there is no private right of action," Sullivan said.
The private right of action is a long-held legal principle where people have a right to attempt to enforce laws or recoup damages through a lawsuit. Sometimes the idea is referred to as a "private attorney general," according to Joshua Silverstein, a law professor at the University of Arkansas at Little Rock Bowen School of Law.
"One of the reasons Congress started adding explicit rights of action in federal statute in the 20th century was because it is beyond dispute that the government does not have the resources to enforce all of the law, all of the time," Silverstein said.
As a part of the lawsuit, the Department of Justice filed a statement of interest saying it didn't have the resources to take the case up itself, saying, "The limited federal resources available for Voting Rights Act enforcement reinforce the need for a private cause of action."
Rudofsky's order has some worried that it could help shape the opinion of other federal judges reviewing voting rights cases.
"A district court opinion has no precedential value, meaning it is not binding on anybody else including another district judge," said Robert Steinbuch, a law professor at UALR Bowen School of Law.
The one potential saving grace for the plaintiffs in the order is that Rudofsky wrote that "there is a strong merits case that at least some of the challenged districts in the Board Plan are unlawful."
"Certainly, that gives us hope," Sullivan said, adding that Rudofsky could side with the plaintiffs if the U.S. attorney general takes up the case.
But Steinbuch read the judge's opinion differently, saying it is more of a hypothetical rather than an indication of a future ruling.
If the plaintiffs appeal, the case would go to the U.S. Court of Appeals for the Eighth Circuit which tends to be more skeptical of parties' right to suit than other federal appeals courts, Silverstein said.
"They have a somewhat narrower understanding of standing doctrine than some other circuits," Silverstein said. "Whether it's enough narrower to impact how they will read this case, that I don't know."
The fight over Arkansas' state House districts mirrors legal battles taking place across the country as states redraw their Congressional and state legislative districts after the decennial census.
Accusations of gerrymandering, where lawmakers draw districts to favor one political party's candidate over another, have been thrown at both Democrats and Republicans as they rework district maps.
Just as hearings for Arkansas' legislative maps were coming to an end in federal court, the U.S. Supreme Court voted 5-4 to reinstate Alabama's congressional map which had been thrown out by a panel of federal judges for violating the Voting Rights Act.
"Redistricting is now, if not the most important -- and I think it's the most important personally -- one of the most important areas in election law," Silverstein said. "Actually one of the most important areas in law period."