Voting rights law challenges far from over – Center for Public Integrity

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When the U.S. Supreme Court ruled on an important voting rights case earlier this year, its ruling made it more difficult for voters to challenge states’ restrictive voting laws.

Now the state of Texas is making an argument that, if passed, would further hamper the use of what’s left of the voting rights law.

In a brief filed in a redistribution case last month, Texas attorneys argued that it was not clear that Section 2 of the Voting Rights Act allows for private challenges to state laws, an argument that runs counter to how historic civil rights law of the era has been interpreted by federal courts for decades. The state made the same argument in a case concerning its new electoral law.

Such a scenario seems far-fetched, but Texas lawyers are not raising the issue out of nowhere.

In a concurring opinion of a paragraph in Brnovich v. Democratic National Committee, the voting rights case decided last summer, Supreme Court Justice Neil Gorsuch has said previous court cases have assumed that private parties have the right to sue state election laws under section 2 of the VRA , but it was an “open question” that the Supreme Court had not yet decided. Judge Clarence Thomas was the only other member to sign the Gorsuch agreement.

“If it hadn’t been for the Gorsuch line in Brnovich, I would have thought that was a bit of a crazy argument, ”said Ruth Greenwood, director of the Election Law Clinic at Harvard Law School, of the Texas case.

Battle-tired voting rights pundits have described Texas’ argument as a long shot without the clear support of a majority in the Supreme Court. Nonetheless, they said the argument fits into a pattern of attempts to narrow the scope and usefulness of the voting rights law, and must be seen in the context of recent court rulings unfavorable to rights. to vote. And, they say, this again illustrates why Congress must pass new federal voting rights legislation.

“This is, unfortunately, a Hail Mary pass in a world where people are more receptive to Hail Mary passes,” said Michael Li, senior counsel at the nonprofit Brennan Center for Justice. . But “you have to take everything very seriously, because even the worst complaints are sometimes taken seriously”.

Claim it right or not, on Tuesday the US Department of Justice made it clear that it takes the potential threat to Section 2 seriously, filing a 20-page expression of interest rejecting the state’s argument. The DOJ filed a similar statement in the Texas vote case in November. The Justice Department said the case presented “important questions” regarding the application of Article 2 of the VRA and that it had “a substantial interest in ensuring a correct interpretation of this provision”.

A shot through the arc

In 2013, the United States Supreme Court overturned a central requirement of the voting rights law. His decision in Shelby County v. Holder meant that places with a history of racial discrimination in voting no longer had to seek federal approval before making changes to voting laws and procedures. But the case did not affect Article 2 of the VRA, which allows for after-the-fact litigation and applies nationwide.

“Section 2 is permanent, applies nationally and is not in issue in this case,” Chief Justice John Roberts Jr. wrote in the Shelby County decision. Nevertheless, earlier this year the Supreme Court used the Brnovich decision to establish a high bar for the consideration of challenges to state election laws under section 2.

This is the case that included the Gorsuch deal – and Texas lawyers weren’t the only ones noticing.

Following the rulings, Democrats, who hold a slim majority in both houses of Congress, have repeatedly declared voting rights one of their top legislative priorities, including legislation designed to meet recent decisions while restoring and updating the voting rights law.

The legislation, named in honor of the late Representative John Lewis, includes language responding to Gorsuch’s assent by explicitly spelling out the right of private plaintiffs to sue under Section 2, rather than leaving it implied.

Gorsuch’s assertion that there may not already be a private right of action in Section 2 is “grossly incorrect,” said an analysis of the bill released by the US Senator’s office Patrick Leahy of Vermont, the sponsor of the Lewis legislation, calling for judicial approval. “a huge blow through the arc.”

The outlook for the bill is uncertain. Voting rights legislation has historically won bipartisan support, but Senate Republicans blocked consideration of the bill last month; only one GOP member, US Senator Lisa Murkowski of Alaska, voted to open the debate. A sweeping legislative package that would set new national standards for voting laws has also stalled in the face of unified Republican opposition.

Death by a thousand cuts’

The Texas case was filed in a case concerning the state redistribution process brought by a coalition of Latino groups; a federal judge subsequently consolidated the case with others. Texas Attorney General Ken Paxton’s office did not respond to a request for comment.

The argument over whether private actors can sue comes as states face lawsuits making Article 2 claims on redistribution, the once-a-decade political constituency redistribution that helps to determine political power.

“We’re sure we’re going to see similar arguments crop up in other states’ cases on the redistribution front, sort of this problem,” said Sophia Lin Lakin, deputy director of the ACLU’s voting rights project. .

The state’s argument is “clearly a desperate move,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, or MALDEF, which represents the plaintiffs.

“I consider that after 50 years it is highly unlikely that even a conservative Supreme Court will conclude at this point that there is no cause of action under section 2,” Saenz said. After all, he points out, if Congress had no intention of creating a private cause of action, it could have solved the problem by revising and re-authorizing the voting rights law. over the decades.

Other voting rights experts agree with him, even if they are suspicious. Jonathan Diaz, senior legal counsel for voting rights at the Campaign Legal Center, a nonprofit that deals with voting rights cases, described it as “a sure cause for concern that Justice Gorsuch seems to invite this idea. But said he was “skeptical that even this court would go so far as to say that there is no private right of action. Rick Hasen, an electoral law expert who is co-director of the Fair Elections and Free Speech Center at the University of California at Irvine, was also skeptical, but added that “anything is possible these days. And if the only Section 2 lawsuits could be brought by the DOJ, then there would certainly be far fewer Section 2 lawsuits brought. “

The argument is part of an attempt to limit the scope of voting rights legislation, in particular the VRA, several experts have said, with Greenwood describing it as a way of “not actually finding Section 2 unconstitutional, but remove the legs from below this. ”

Li of the Brennan Center said Section 2 fell under “a thousand cut death attacks simply by asking the courts to interpret what you have to show to win.”

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