Trump Judge's Ruling Could Decimate Voting Rights Act

             Another of President Trump’s federal judges took another bite out of the federal Voting Rights Act last week [Feb. 17] with a devastating ruling in a minority vote dilution challenge to legislative redistricting in Arkansas. The ruling, if eventually affirmed by the Supreme Court, would cripple enforcement of the law by holding that private plaintiffs have no right to bring suit to enforce the act’s general prohibition against election law changes that result in “a denial or abridgment of the right of any citizen of the United States to vote on account of race or color . . . .”

            The ruling by U.S. District Court Judge Lee Rudofsky, a 40-something judge appointed by Trump in 2019 after experience in Republican politics and two decades as a member of the Federalist Society, builds on two separate opinions by Trump-appointed Supreme Court justices in recent election law cases. The ruling goes against the great weight of authority at the Court and in lower courts that have assumed a private right of action to enforce the Voting Rights Act’s central provision, section 2.

             Rudofsky’s ruling in Arkansas State Conference of NAACP v. Arkansas Board of Apportionment torpedoed a factually detailed suit brought by the state NAACP challenging the relatively small number of black-majority districts in the Arkansas House of Representatives. Claiming associational standing on behalf of minority voters, the NAACP alleged that the new redistricting plan creates only eleven majority-black House districts in the 100-seat chamber even though it would be possible to create sixteen geographically compact, majority black districts in a state where black voters account for about 12 percent of the state’s population.

            Based on these calculations, the NAACP claimed that the legislative districting plan “dilutes Black voting strength in violation of section 2 of the Voting Rights Act.” In his ruling, Rudofsky acknowledged, as he had to, that the Supreme Court “has long held that the scope of §2’s prohibition encompasses the alleged dilution of Black votes.” Rudofsky also acknowledged what he called “a strong merits case that at least some of the challenged districts . . . are unlawful under §2 of the Voting Rights Act.” 

Significantly, the state defendants did not challenge the plaintiffs’ cause of action on jurisdictional grounds. Rudofsky raised that issue on his own, by invoking a separate opinion by Justices Gorsuch and Thomas in last year’s decision in an Arizona election law case, Brnovich v. Democratic National Committee (2021). Plaintiffs in that case contended that election law policies in Arizona, including a state law that bans so-called ballot harvesting, abridged minority voters’ right to vote on account of race. Five Republican-appointed justices combined in Chief Justice Roberts’ 5-4 decision to reject the DNC’s argument.

Gorsuch, the first of Trump’s three appointed justices, wrote a separate one-paragraph opinion joined by Thomas to “flag” a jurisdictional issue that Arizona officials had never raised themselves—specifically, “whether the Voting Rights Act of 1965 furnishes an implied cause of action under §2.” Gorsuch acknowledged that the Court had long assumed – “without deciding” ­that the law does authorize a private right of action, but he contended that lower courts have treated the question as open.

Rudofsky found other support for his unprecedented ruling in a separate opinion by another of Trump’s justices, Brett Kavanaugh, in the recent decision to allow the state of Alabama to implement a congressional redistricting plan that allegedly amounts to minority vote dilution by creating one but not a second majority-black district in the state. Trump’s three justices – Gorsuch, Kavanaugh, and Barrett – were critical to the 5-4 ruling in Merrill v. Milligan (Feb. 7). The Court wrote no full opinion in the case, but Kavanaugh wrote in a concurring opinion that the lower court order to require new congressional districts nine months before the election violated the so-called Purcell rule against court-ordered changes too close to an election.

Citing Kavanaugh’s opinion, Rudofsky saw a similar issue in the Arkansas case, even though legislative elections are also nine months in the future. Still, Rudofsky acknowledged that the plaintiffs alleged that Arkansas’ election schedule “would make judicially imposed changes easier to accomplish and less burdensome on state and county election officials” than in the Alabama case.

After what he called a “painstaking journey through relevant case law,” Rudofsky concluded bluntly that the instant case “may be brought only by the Attorney General of the United States.” With that view, Rudofsky gave the government five days to decide whether to join the Arkansas case to keep it alive.

Without suggesting any improper manipulation in assigning the case to the newest of the seven judges in Arkansas’s eastern district, it might be noted that the court includes four Democratic-appointed judges with longer experience and two other Republican-appointed judges. It is also worth noting that the GOP-majority Senate confirmed Rudofsky to his lifetime seat on November 7, 2019, by a 51-41 vote, with not a single Democrat voting in favor.

I should also note that my press corps colleague Ruth Marcus has also written a forceful commentary [Feb. 18] about the decision under a headline that calls the ruling “stark evidence of Trump’s toxic judicial legacy.”