U.S. Justice Department declines to intervene in Arkansas redistricting case, clearing way for new legislative map

Betty Dickey looks over at the redistricting maps during the Arkansas Board of Apportionment meeting Friday, Oct. 29, 2021, at the state Capitol in Little Rock.  (Arkansas Democrat-Gazette/Staci Vandagriff)
Betty Dickey looks over at the redistricting maps during the Arkansas Board of Apportionment meeting Friday, Oct. 29, 2021, at the state Capitol in Little Rock. (Arkansas Democrat-Gazette/Staci Vandagriff)

The federal government won't intervene in the challenge to Arkansas' new state House of Representatives map, effectively ending the lawsuit unless it's appealed.

A filing Tuesday in federal court in Little Rock by the U.S. Department of Justice said the agency stands by its contention that private parties may bring discrimination claims under Section 2 of the Voting Rights Act of 1965, but the U.S. attorney general's office will not intervene in the case brought by the American Civil Liberties Union against the Arkansas Board of Apportionment.

The Justice Department's decision allows state election officials to continue with the filing period that began Tuesday at the state Capitol for candidates seeking state elected office.

The federal lawsuit filed by the ACLU on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel challenged the new House district map approved by the Board of Apportionment, which consists of Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston.

Shortly after the Justice Department's filing, U.S. District Judge Lee Rudofsky entered a one-sentence order officially dismissing the case.

In a ruling last Thursday, Rudofsky dismissed the lawsuit -- which argues the new House districts violate the 1965 Voting Rights Act by diluting the Black vote in Arkansas -- but he gave the U.S. attorney general five days to intervene in the case.

Rudofsky said in his ruling that evidence suggests the new House map discriminates against Black voters, but he ruled the plaintiffs had no "private right of action" to bring the lawsuit because Congress had not expressly provided one in the Voting Rights Act. Private right of action is the legal principle that allows a private citizen to enforce a law through the courts.

"Only the Attorney General of the United States can bring a case like this one," Rudofsky opined.

Rudofsky's ruling upends more than a half-century of precedent in which the right of private citizens to file suit over claims of Section 2 violations has been assumed in numerous cases since passage of the act in 1965.

As recently as December, in a voting rights case in the Western District of Texas brought by the League of United Latin American Citizens against Texas Gov. Greg Abbott, U.S. District Judge David Guaderrama denied a motion by Abbott's attorneys to dismiss the case on the grounds that no private right of action existed.

In its filing on Tuesday, the Justice Department said "longstanding case law, the structure of the Voting Rights Act, the Act's broad enforcement provisions, and authoritative sources of Congressional intent" have confirmed the right of private citizens to challenge redistricting plans believed to have violated the Voting Rights Act.

In his ruling, Rudofsky cited an Arizona case -- Brnovich v. Democratic National Committee -- in which the U.S. Supreme Court sided with a lower court to uphold a 2016 Arizona law that criminalized the collection and delivery of another person's ballot, even though third-party ballot delivery had been legal in the state for 25 years prior to the law's passage. In doing so, the Supreme Court overturned a Ninth Circuit Court of Appeals ruling in which a majority of the full court found that the district court "clearly erred."

The Supreme Court voted 6-3 to overturn the appeals court ruling and accepted the district court holding that the law was not enacted with any discriminatory purpose.

Rudofsky cited a concurring opinion from Justices Neal Gorsuch and Clarence Thomas, who said, because neither party raised the question of whether the Voting Rights Act provides an implied right of action under Section 2, the Supreme Court did not decide on the matter.

"Our cases have assumed -- without deciding -- that the Voting Rights Act of 1965 furnishes an implied cause of action under [Section] 2," they wrote. "Lower courts have treated this issue as an open question."

In his ruling last week, Rudofsky said that Section 12 of the Voting Rights Act, which contains civil and criminal sanctions for violations of the act, "appears to be the only remedial provision that Congress provided for violations of [Section] 2."

Section 12 establishes maximum criminal penalties of $5,000 and five years in prison for violations of Section 2 and provides guidelines for civil remedies to address violations as well.

A comprehensive reading of Section 12, Rudofsky said, "clearly establishes that it is focused entirely on enforcement proceedings instituted by the Attorney General of the United States." He said the language of the act makes no mention of private parties, an omission, he said, that "strongly implies their exclusion."

Hutchinson, the Republican governor, said in an email Tuesday that the ruling removes any uncertainty among candidates for the House regarding the district lines and allows them to proceed with filing, which began Tuesday at the state Capitol and continues through March 1.

"Even though the case will likely be appealed and considered by the 8th Circuit, the map is now final," Hutchinson said in the statement.

Rutledge, the Republican attorney general, applauded the ruling, saying in an email that the decision of the Justice Department not to intervene in the case means that any uncertainty hanging over legislative candidates filing for the May 24 primary election is now lifted.

"With candidate filing officially underway today," Rutledge said, "I am pleased Arkansans can confidently move forward with the election process."

The case was filed Dec. 29, one month to the day after the new House map was approved. Two days later, the ACLU filed a motion for Rudofsky to recuse on the grounds that his past political support of two Board of Apportionment members and past employment with one could lead to questions about his impartiality in the case.

Rudofsky has contributed in the past to both Hutchinson's and Rutledge's re-election campaigns, and he was employed by Rutledge as the state's solicitor general before being nominated to the federal bench.

On January 5, Rudofsky filed a 17-page order in which he declined to recuse, saying that recusing when not required by law enables judges to avoid difficult, controversial cases by foisting those cases onto fellow judges' already crowded dockets, calling it "an abdication of the judicial role and an insult to one's colleagues in the district."

Kymara Seals, policy director for the Arkansas Public Policy Panel, said she believes Rudofsky's ruling last week flies in the face of established law regarding who can bring court challenges in discrimination claims under the Voting Rights Act.

"Fifty years of precedent and he veers away from that, which is very problematic," Seals said Tuesday, reacting to the dismissal order. "Based on his decision and the precedent he is trying to establish, it doesn't give us any protection in cases like this."

Seals said the Justice Department has said it lacks the resources to pursue all Voting Rights Act claims, so it depends on actions by private citizens to defend their voting rights. Rudofsky's ruling, she said, jeopardizes that.

"That just leaves us in a very bad place, and it's really frustrating," she said.

She said a silver lining in Rudofsky's ruling is his admission that the case has merit. Her intent is to appeal the case to the Eighth Circuit and, if necessary, the U.S. Supreme Court.

"We recognize that we are in this fight for the long haul," she said, acknowledging that it could take years for final resolution. "The Black population in Arkansas increased, but our representation did not. And we believe that was very intentional, so we are going to continue this fight."

Bryan Sells, the lead attorney for the plaintiffs, said an appeal of the ruling is under consideration but no final decision has yet been made.

"We've got 30 days to make that decision," Sells said. "Given how fresh it is and how much time we have, we have not yet made that decision."

Sells said that Rudofsky's ruling applies only to the current case, but he acknowledged some inherent risk in the appeals process as higher court decisions -- however they fall -- would have the effect of establishing binding legal precedent.

"If we were to appeal and the Eighth Circuit were to rule against us," he said, "then it would become applicable in all of the states that are in the Eighth Circuit."

By the same token, he said, a U.S. Supreme Court decision would be binding throughout the country.

Sells said other judges can look to Rudofsky's ruling for guidance in similar cases, but he said it is unlikely the decision will have a far-reaching effect, at least in the near term.

"Given that he's the first judge in the 57-year history of the Voting Rights Act to rule this way, I don't expect a tidal wave of opinions in other cases to come out this way," he said. "The issue was raised in an Alabama case before Judge Rudofsky ruled and a three-judge panel consisting of two Trump appointees unanimously rejected it. I think that gives some indication of how persuasive his opinion is likely to be."

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