Attorneys for the American Civil Liberties Union on Wednesday filed a notice to appeal the recent decision of U.S. District Judge Lee Rudofsky dismissing a lawsuit contesting the new Arkansas House district map approved in November by the state Board of Apportionment.
The lawsuit was filed on behalf of the Arkansas State Committee NAACP and the Arkansas Public Policy Panel. The complaint said the new map contained 11 Black majority House districts despite the fact that the Black population in Arkansas comprises 16.5% of the total population and 15.5% of the voting age population.
That was a loss of one majority Black district from the 2011 House map even though the Black population in Arkansas grew by some 30,000 people -- enough to populate an additional House district -- as the white population shrunk by about 110,000 -- the approximate equivalent of three House districts.
The plaintiffs seek relief under Section 2 of the Voting Rights Act of 1965, which prohibits drawing voting districts in ways that improperly dilute minority voting power. The ACLU provided illustrative maps to the Board of Apportionment -- which consists of Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston, all Republicans -- that included 16 majority Black House districts.
Rudofsky filed a 17-page order Feb. 17 saying that while there existed "a strong merits case that at least some of the challenged districts in the Board Plan are unlawful," he had found the Voting Rights Act itself gave only the U.S. attorney general authority to bring a lawsuit, and has no provision for a private right of action.
Rudofsky gave the Justice Department until Tuesday to intervene in the case, but in a filing Tuesday the Justice Department declined and a short time later Rudofsky dismissed the case.
In his order, Rudofsky cited a recent Supreme Court case out of Arizona in which Justices Neal Gorsuch and Clarence Thomas raised the question of whether a private right of action is implicit in the Voting Rights Act.
"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."
Rudofsky's ruling ignored over a half-century of precedent in which private citizens have consistently challenged violations of the Voting Rights Act in federal courts across the country without their right to do so being questioned.
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," said Joshua Silverstein, a law professor at the University of Arkansas at Little Rock Bowen School of Law in an interview last week with the Arkansas Democrat-Gazette.
"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."
In a statement emailed to the Arkansas Democrat-Gazette on Wednesday, Rutledge maintained that the House map was drawn in accordance with state and federal law.
"The ACLU's case was dismissed by the federal district court and even President Biden's administration knows the ACLU's case is a loser," Rutledge said. "More than 300 candidates have already filed to be on the ballot this May. It's time for the ACLU to admit defeat and allow the election process to move forward in accordance with Arkansas law."
Holly Dickson, executive director of the ACLU of Arkansas, said Wednesday in an email to the Democrat-Gazette that the ACLU will continue to "fight against brazen and unlawful attempts to undermine voting rights in Arkansas and around the country."
"Arkansas has a history of official voting-related discrimination on the basis of race and this new map limits Black voting strength," Dickson said. "Maps should represent all Arkansans and we will do everything we can to make sure we have fair maps for the next decade."
Dickson said the private right of action has been unquestioned for more than 50 years as private individuals have sought relief under Section 2 of the Voting Rights Act.
"Until last week, no court had ever questioned that voters have the right to enforce their rights under the VRA," Dickson said. "That is why we filed our appeal [Wednesday] and we are in it for the long haul."
Sophia Lyn Lakin, deputy director of the ACLU's Voting Rights Project, said Wednesday that the private right of action has played a pivotal role in providing private citizens with the means to take on voting rights violations under Section 2 since the Voting Rights Act was passed in 1965. Those actions brought by private citizens, she said, have been instrumental in protecting voting rights.
She said when the Supreme Court ruled the coverage formula in Section 4(a) of the Voting Rights Act that enabled Section 5 unconstitutional, the reasoning then was that Section 2 would stand as the mechanism by which individuals could protect their rights. Section 5 required nine states and selected counties and townships in six others with a history of discrimination to submit any proposed changes in voting procedures for federal approval before those changes could take affect.
"What we're seeing are attacks on Section 2 across the board here in these cases," Lakin said. "From that perspective is yet another example of kind of an attempt to provide different ways to weaken Section 2 as the strong, robust tool to protect voting rights that it was intended to be, so we're doing everything we possibly can to keep it as strong as it's meant to be and this appeal is part of that."
Lakin said that in recent years legislation to restrict voting rights has become more prevalent, and that attempts to weaken the guardrails put in place by the Voting Rights Act have been part and parcel of that effort.
"We're rolling back the clock quite dramatically in terms of the progress we've made since the Voting Rights Act was enacted back in 1965," she said.
Lakin said the Arkansas House map case is about as clear-cut a case of a Section 2 violation as any being litigated, but she said one reason the Justice Department may have declined to intervene was the short timeline given by the judge.
"Five days is not a feat that most organizations would do lightly without thought," she said. "These cases take a long time to build."
She said the Justice Department made clear in its statement to the court that it supports the private right of action to enable individuals to bring Section 2 claims before the court, and Lakin took issue with Rutledge's characterization of the case as a "loser."
"Reading into those lines about what the DOJ thought about the case is certainly uncalled for and baseless," Lakin said. "We feel very strongly and are confident in the merits of this case. If we only brought on the cases that are easy we wouldn't be doing our job."
Information for this article was contributed by Neal Earley of the Arkansas Democrat-Gazette.