Door Opens to Return of Jim Crow

Malik Miah

August 6, 1965: President Lyndon Johnson signs Voting Rights Act as MLK and others look on.

A FEDERAL COURT on November 20 issued a decision severely curtailing enforcement of the Voting Rights Act (VRA) that could affect voters of color nationwide and will probably be appealed to the U.S. Supreme Court.

The decision opens the door wider to a return to Jim Crow laws that once ruled the South. The laws made it nearly impossible for African American people to vote or function as equal citizens.

The Voting Rights Act prohibits voting practices or procedures that discriminate on the basis of race or color. It did not specify who could file suits against the violators.

The appellate court ruled, for the first time, that a key section of the VRA, adopted by Congress in 1965, can only be enforced by the U.S. attorney general. The decision upheld a ruling by U.S. District Judge Lee Rudofsky, who in 2022 dismissed a lawsuit challenging Arkansas’ new district map because he said that the Justice Department had to join the plaintiffs.

Voting rights groups in Arkansas argued in their lawsuit that a new map of congressional districts weakened Black voters’ electoral power in the state.

Rudofsky, an appointee of President Donald Trump, gave Attorney General Merrick Garland, appointed by President Biden, five days to join the groups in the case. When Garland refused, the case was dismissed.

Individuals and Groups Denied

The appellate court, the Eighth Circuit Court, affirmed the district court ruling. It also said only the U.S. government can sue to enforce the Voting Rights Act that allowed Black people to vote across the country with few restrictions. For the first two hundred years of the country that was not the case.

The new ruling would dismantle the primary mechanism that voting rights groups use to protect against racial discrimination in voting, often in the form of lawsuits challenging electoral maps.

In their decision, the Eighth Circuit judges noted that, in the past 40 years, at least 182 successful Section 2 of the VRA cases have been filed and, of those, only 15 “were brought solely” by the attorney general.

In the majority opinion, Judge David Stras — a Trump appointee — wrote that while courts have, “for much of the last half-century,” “assumed” that Section 2 is enforceable, “a deeper look has revealed that this assumption rests on flimsy footing.” Stras was joined in the majority opinion by Judge Raymond Gruender, a George W. Bush appointee.

In his dissent, Chief Judge Lavenski Smith — also a Bush appointee — said that, while “admittedly, the Court has never directly addressed the existence of a private right of action under [Section 2],” the court has “repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists.”

“Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote. “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”

“Eliminating individual people’s right to sue” under the VRA “runs contrary to settled law, common sense and any basic concept of fairness: When the government discriminates against people, they should have a right to fight back in court,” said Paul Smith, senior vice president at the Campaign Legal Center.

Richard L. Hasen, a professor of law and political science at the University of California, wrote that the 8th Circuit majority reached its decision “with a wooden, textualist analysis” despite “recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought, assuming that Congress intended to allow such suits.”

Wendy Weiser, who directs the Democ­racy Program at the Brennan Center for Justice at NYU School of Law, said that this is why it is “very significant” that the 8th District would use such logic to decide “something so significant and so radical” that she argued would be “devastating to the enforcement of the Voting Rights Act.”

Weiser said the 8th Circuit’s decision suggests that, nationally, there’s “an environment where judges feel like it would be permissible for them to just rewrite the law, upend precedent, and core rights and protections.

The intent of the civil rights law, which outlaws racial discrimination as it relates to voting, has typically been enforced by lawsuits from these groups, not by the government.

VRA Basically Gutted

The Supreme Court has over the last decade generally sought to weaken voting rights for African Americans falsely claiming race is not or should be a consideration in court rulings.

Section 2 and Section 4 were the heart of the law. Section 4 had mandated that the Justice Department be contacted before certain states could re-map voting districts or re-write laws. The law also said Section 5 on “preclearance” must be followed by those states. Section 4 and 5 prevented new voting maps from being drawn without preapproval.

Section 4 was overturned by the Supreme Court in 2013 thus invalidating preclearance. The vote was a 5-4 majority. Justice John Roberts, a long-time opponent of equal rights. Immediately after that decision states across the South passed new anti-voting laws that restricted Black voting rights.

The 2013 decision only applied to Section 4, which was seen as the backbone of the VRA. It did not overturn Section 2 that allowed civil rights groups and individuals to sue states for voting discrimination. Since 2013 Section 2 allowing individuals and groups to file suits has been the only barrier for civil and voting rights groups to fight state discriminating decisions.

What Happens Next?

Since 2013 the Supreme Court has heard cases filed by civil rights groups and individuals. In June, for example, the Court, in a 5-4 decision, ruled  against an Alabama congressional map that included just one district with a majority of Black voters, requiring the drawing of a new map in that state.

Abha Khanna —  who argued the case before the Supreme Court — said she was thrilled with the ruling because it ensures that districts in Black communities are drawn as they were intended under the VRA.

In November, the conservative U.S. Court of Appeals for the Fifth Circuit ruled the opposite way of the Eighth Circuit, affirming the right of individuals to bring such actions.

If the Supreme Court upholds the Eighth Circuit decision, that would potentially completely “gut” nationwide limited protections of voting rights and essentially limit cases to “what the Department of Justice can and chooses to take on,” Khanna said. “It’s doing so in part under an environment where it has been encouraged to do so by, I think, this more radical turn in the U.S. Supreme Court.”

Few civil and voting rights advocates expect the Court to protect voting rights. Only last year it said using race in college admissions was unconstitutional, declaring the Constitution “color blind.”

The role of the Supreme Court for most of its history has been to limit equal rights for Black people and other people of color. The exception was during the mass civil rights movement in the 1960s when historic civil rights and voting rights legislation was adopted and upheld by the court.

After the second American Revolution, the Civil War of 1861-65, freed slaves won the right to vote and became close to equal citizens. But in 1877 Congress decided to remove Union troops protecting former slaves from violent white supremacists.

Within 10 years, Jim Crow segregation laws were enacted across former slave states and Black people lost most of their civil rights written in the amendments to the Constitution. It took nearly 100 years to win them back, only to see them under assault again.

January-February 2024, ATC 228