A preliminary injunction hearing regarding the new state House redistricting map that was scheduled to begin Thursday in federal court has been pushed back at least a week -- if not longer -- after the presiding judge exhibited covid-19 symptoms following exposure to the virus.
U.S. District Judge Lee Rudofsky issued an order Sunday delaying the hearing for a preliminary injunction on the new House map until "the first part of the first week of February" after, he said, he began to exhibit "symptoms consistent with Covid-19" earlier in the day.
That order comes on the heels of a motion Friday by the defendants in the case -- Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston -- to have the state's three Board of Apportionment members' subpoenas quashed, saying that their testimony would be irrelevant to the case and that all relevant facts can be attested to by subordinates.
At issue is a claim by opponents of the new state House redistricting map approved by the Board of Apportionment -- Hutchinson, Rutledge and Thurston -- that it dilutes Black voter representation through the drawing of 11 of 100 House districts into minority-majority districts. Those 11 districts are one less than the 12 districts designated 10 years ago and are five less than what opponents say are required to achieve parity for Black voters in the state.
According to figures released by the U.S. Census Bureau, the latest decennial count of people in the U.S. showed that Black residents of Arkansas comprise 16.5% of the state's overall population and 15.5% of the state's voting age population.
The ACLU of Arkansas filed suit on Dec. 29 on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel, challenging the new House district boundaries. Also filed was a motion for a preliminary injunction to block the new map from going into effect until the case is decided and a request for expedited briefing and consideration because of the candidate filing period that begins Feb. 22 and concludes March 1.
Almost immediately, the case hit a snag when the plaintiffs filed a motion Dec. 31 asking that Rudofsky recuse from the case based upon his former employment by Rutledge in the attorney general's office and his political support of Rutledge and Hutchinson based upon two campaign contributions he made when both were running for reelection. On Jan. 5, Rudofsky entered an order denying the motion.
After Friday's motion to quash the subpoenas, Rudofsky first scheduled a telephone conference to decide the matter today but on Sunday, entered another order postponing the hearing until Thursday. Also included in his order was the cancellation of the hearing for a preliminary injunction until the first week of February at the earliest.
"I am vaccinated and boosted," Rudofsky said in the brief order posted on the case docket. "Two members of my household (one is vaccinated and boosted; the other is not eligible for the vaccine) tested positive for Covid-19 in the last several days. Then, on Sunday, I developed symptoms consistent with Covid-19."
Earlier, Rudofsky had said he hoped to make a ruling on the preliminary injunction by the first week of February, but in his order he did not say how long such a ruling might be delayed.
In a memorandum in support of the motion to quash the subpoenas served to Hutchinson, Rutledge and Thurston, the defendants' attorneys said their testimony would not be relevant because their motivations in voting to approve the House map are not at issue.
"This case is not about their motivations in voting to approve the challenged maps," the brief said. "It would therefore be grossly unjust to require high-level government officials -- all of whom have scheduling conflicts, two of which include significant travel out of state on official business -- to attend the upcoming hearing."
In addition, it said, their testimony at the hearing would likely bear no relevance to the claims of the plaintiffs, would likely be barred anyway due to legislative or deliberative-process privilege, and would violate the "apex witness rule" requiring plaintiffs to "first exhaust lower-level employees for the information necessary before compelling the testimony of high-level government officials."
The brief said that when weighed against "the significant disruption" of official state business, the subpoenas were unjustified for any purpose "except to subject the constitutional officers to the inconvenience of being hauled into court."
Gary Sullivan, legal director for the ACLU of Arkansas, said Monday that the role of the three Board of Apportionment members places them in the position of having the most relevant testimony, despite the plaintiffs' contention otherwise.
"This is not the typical suit where the governor, the AG or the secretary of state are sued in their official capacities and would not necessarily have personal knowledge or hands-on experience on what a lawsuit is about," Sullivan said. "In this case [they] are the people who voted to affirm the maps, so they are the key players in drawing and adopting the maps. Therefore, they are material witnesses, so they are subject to being examined in court."
Sullivan said because the Arkansas Constitution charges the three office-holders with the responsibility of drawing and approving the state Senate and House maps every 10 years, "they are an integral part."
Holly Dickson, executive director of the ACLU of Arkansas, called the motion a "knee-jerk reaction" on the part of the state.
"They always want to shield their officials from lawsuits and testimony and all of that," she said. "In a normal case they wouldn't have the type of involvement they do in a suit like this ... they made the decisions and no doubt had communications with legislators."
Despite the delay in proceedings, Sullivan said he believes if the judge rules in the plaintiffs' favor, either that ruling can be obtained far enough in advance of the coming filing period or, if necessary, Rudofsky has the authority to delay the filing period.
"But if he rules against us and we appeal," he said, "it's going to be really cutting it close to get the 8th Circuit [Court of Appeals] to expedite a ruling before the filing period, but it's been done before. It can be done."