A lawsuit challenging Arkansas' congressional map was tossed this week by a three-judge panel that ruled the shift of more than 23,000 Black voters in southern Pulaski County from the 2nd Congressional District to two other districts was legal because it was motivated by politics rather than race.
The panel's decision on Wednesday came a day after another suit with similar claims was filed in federal court in Little Rock.
The earlier lawsuit, filed in March 2022 on behalf of six Pulaski County voters, including two state legislators, 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 redistricting plan divided Pulaski County, which formerly fell entirely within the 2nd District, among three congressional districts, moving Black voters in the southern part of the county to the 1st and 4th districts and replacing them with white voters from Cleburne County, according to the suit.
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 Arkansas 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 Hutchinson and the state from the lawsuit, leaving Thurston as the sole defendant, and ruled that claims the new map violates the Article 1, Section 2 of the U.S. Constitution, the First Amendment and the Privileges and Immunities Clause of the 14th Amendment had failed "as a matter of law." Those claims were dismissed "with prejudice," meaning they cannot be refiled. 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.
In the order filed Wednesday, the panel dismissed the remainder of the complaint, saying the plaintiffs had failed to provide evidence that the redistricting was racially motivated.
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 Democrats into two majority Republican districts.
"Indeed, even the opponents of the new congressional map did not think racial animus played a role," the order said. "One said she 'hadn't heard anybody make allegations of racism' ... Another summarized the opposition as focused on 'the impact of this map,' not its 'intent.'"
The order said those statements belied "the notion that race played a role in drawing the map, much less a 'predominant' one."
Attorney General Tim Griffin praised the ruling.
"A panel of three federal judges dismissed a challenge to Arkansas's congressional districts and confirms what we already knew: Our congressional districts do not violate the United States Constitution and are legal," Griffin said in a statement.
"This is the second time in less than a month that a court has dismissed a challenge to Arkansas's congressional districts. Just two weeks ago, the Pulaski County Circuit Court dismissed a companion state court challenge to Arkansas's congressional districts. And today's unanimous opinion means that a third challenge filed this week--that simply regurgitates the same tired allegations as the complaint dismissed today--is likewise doomed to fail."
Richard Mays, the attorney for the plaintiffs, said Thursday night the order issued by the panel isn't necessarily the end of the matter
"It's the end of the case in the district court, the three-judge panel, but we have the right to appeal directly to the Supreme Court in a case like this, a three-judge panel in a voting rights case," Mays said.
Mays said no decision had been reached regarding an appeal as he had just received the order and had not yet reviewed it with the plaintiffs.
"The standard for the review that the court used is not the right standard," he said. "The standard is whether we have alleged with sufficient credibility that the main purpose of the redistricting, the gerrymandering, was based upon racial considerations rather than any other, such as political considerations. I think that's a terrible standard and I'm not sure that's what the Supreme Court says is required."
Mays said the Supreme Court has been less than clear in recent decisions regarding what standard is required to prevail in redistricting cases, but he said the court has ruled that political redistricting considerations are beyond the purview of the federal courts.
Mays said the problem in this case is how to determine whether the primary motivation was political or racial, "when both may be present."
"The problem is it's not either-or," he said. "It's a mixture and they claim to have accomplished this by saying they didn't consider race when it was done, that it was all political. ... If this were the standard, it would make it impossible to overturn the gerrymandering of a district when you can move Black voters anywhere based on the idea that it's a political maneuver rather than racial discrimination."
Under the standard of review used in the decision and indications from the Supreme Court about political gerrymandering, Mays said, simply claiming political motivations and avoiding discussion of race completely when debating such measures would have the effect of placing the bar for racial discrimination claims out of reach, regardless of the discriminatory effect of such maneuverings.
"The Republicans said race wasn't a consideration in redistricting and that race wasn't even mentioned," he said. "The Democrats pointed out that it's not illegal to discuss race, that it is a proper consideration and they pointed out the effect of the bill. The problem is, the Supreme Court has said the effect isn't that important, that it's the intent. ... It's a very uneven playing field and it's a way of allowing white Republicans the ability to discriminate against Black voters."
The suit filed Tuesday contends the redistricting violates the 14th and 15th amendments to the U.S. Constitution by "intentionally separating Black voters."
The plaintiffs in that case are the Christian Ministerial Alliance and Pulaski County voters Patricia Brewer, Carolyn Briggs, Lynette Brown and Mable Bynam.