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Attorney in Arkansas redistricting lawsuit says Court’s Alabama decision is good news for plaintiffs

Case similar to Arkansas challenge, LR attorney says by Dale Ellis | June 9, 2023 at 4:05 a.m.
FILE — The Arkansas Supreme Court is shown in this undated file photo.

A U.S. Supreme Court decision Thursday striking down Alabama's congressional district map is being eyed nationally by several states with similar lawsuits pending, including Arkansas, according to an attorney representing plaintiffs in one case.

In the surprise 5-4 decision Thursday, the Supreme Court ruled that Alabama had diluted the power of Black voters when the state's congressional map was redrawn by drawing only one Black majority district of the seven congressional districts despite Black voters making up a quarter of the state's population. The decision means that Alabama will have to draw its congressional map to include a second majority-Black district.

A case with similar overtones in Arkansas was recently tossed out by a three-judge panel, which upheld the Arkansas congressional map resulting from a legislative decision to move 22,000 predominately Black voters out of Arkansas' 2nd Congressional District and replace them with 22,000 predominately white voters by moving Cleburne County from the 1st Congressional District to the 2nd. In dismissing the case, the panel ruled that the plaintiffs, represented by Little Rock attorney Richard Mays, had failed to establish racial discrimination as the motive for the decision.

"The Supreme Court approved a decision based upon facts very similar to the ones in our case in which the [Alabama] three-judge-panel pretty much adopted, I thought, our position," Mays said. "So I think it helps. I don't think it's a guarantee that we would prevail, but I think it makes it a better argument."

Mays filed the lawsuit in March 2022 on behalf of six Pulaski County voters, including two state legislators, who accused the state of diluting the Black vote in the 2nd District through a gerrymandering method known as "cracking," which is used to disperse voters of similar interests among populations with which they hold little in common. The plaintiffs -- Jackie Williams Simpson, Wanda King, Charles Bolden, Anika Whitfield, state Rep. Denise Ennett, D-Little Rock, and state Sen. Linda Chesterfield, D-Little Rock -- accused the state of violating the U.S. Constitution, the state constitution and the federal Voting Rights Act of 1965 by diluting Black voting power and influence through the newly drawn map. The lawsuit named then-Gov. Asa Hutchinson, Secretary of State John Thurston, and the state of Arkansas as defendants.

Last October, the panel -- 8th U.S. Circuit Court of Appeals Judge David Stras, Chief U.S. District Judge D. Price Marshall Jr. and U.S. District Judge James M. Moody Jr. -- dismissed all defendants but Thurston from the lawsuit and dismissed claims the map violated the U.S. Constitution. The order gave the plaintiffs time to submit further evidence to demonstrate that the new map was racially motivated in violation of the Arkansas Constitution and last month, saying the plaintiffs had failed to do so, the panel dismissed the remainder of the lawsuit.

What the panel found instead, according to the order, was a politically motivated desire to dilute Democratic votes by disbursing a large voting bloc of likely Democratic voters into two majority Republican districts and replacing them with a bloc of likely Republican voters.

Mays said that while the Alabama case doesn't directly parallel the Arkansas lawsuit, the Supreme Court ruling did address one important question he said the panel got wrong in Arkansas.

"They said we failed to create a plausible inference that the legislature as a whole was imbued with racial motives," Mays said. "I think we did show there was a racial motivation on the part of the Republican leaders, but to show that everyone who voted for the map had a racial motivation would be impossible. I think the court is wrong there and I do plan to appeal it."

Thursday's Supreme Court ruling, Mays said, offers a window of hope that an appeal before the high court might succeed because of Chief Justice John Roberts' statement in the majority opinion that Section 2 of the Voting Rights Act, "turns on the presence of discriminatory effects, not discriminatory intent," which Mays said, "is exactly what we've been saying all along."

"I do think it signals that the Supreme Court is not as restrictive in its reading of the Voting Rights Act as the three-judge panel was in our case," he said. "They went out of their way to say it doesn't require intent but that it's a matter of the impact on the voters and on the citizens."

Mays said one obstacle could be the 1986 Thornburg v. Gingles Supreme Court decision, which established a legal framework for assessing claims of minority vote dilution with gerrymandered redistricting or the use of at-large positions through Section 2 of the Voting Rights Act. Under the Gingles test, plaintiffs must show the existence of three preconditions:

The racial or language minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district;

The minority group must be politically cohesive;

The majority votes as a bloc sufficient most of the time to defeat the preferred minority candidate.

"We may raise the issue of whether the condition of sufficient numbers to create a minority-majority district is necessary in a voting rights case," Mays said. "That condition is not in Section 2 of the Voting Rights Act itself and because the numbers of Black voters in the 2nd District were concentrated mostly in the southern portion of the district in Little Rock, it seems obvious that the reason the Republican leadership introduced this bill was to gerrymander 22,000 Black voters out of the district and to replace them with 22,000 white voters."

Mays said while the number of voters in the district remained the same, "the racial makeup of the district is significantly changed."

Attorney General Tim Griffin said Thursday in a text message to the Arkansas Democrat-Gazette that the decision doesn't create any concerns for his office regarding an appeal of the Arkansas case ruling.

"The VRA claim was dismissed months ago and the remainder of the case was recently dismissed because the plaintiffs failed to plausibly plead discrimination," Griffin said. "[Thursday's] decision doesn't affect that."

Mays said he has two options in addressing the Arkansas ruling, to file a motion for reconsideration before the panel or to appeal directly to the U.S. Supreme Court. He said the deadline for a motion for reconsideration is June 21 and the deadline to file a notice of appeal to the U.S. Supreme Court is June 23.

CORRECTION: A previous version of this story included an incorrect photo of Richard Mays. 

Print Headline: Alabama map ruling draws notice in state

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