Opening the Door Wider to Jim Crow Laws?

Malik Miah

Posted November 28, 2023

Detroiters wait to cast ballots in the 2022 midterm election. https://jimwestphoto.com

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

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

The VRA prohibits voting practices or procedures that discriminate on the basis of race or color. It did not specify who could file suits against violators of the law. Michael Li from the Brennan Center for Justice noted that Congress, when it amended or renewed the act five times between 1965 and 2006, never raised the issue.

Individuals & Groups Denied

For the first time, the appellate court ruled 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 had 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.

The U.S. Court of Appeals for the Eight Circuit affirmed the district court ruling by a 2-to-1 vote. It also said only the U.S. government can sue to enforce the VRA. The new ruling would dismantle the primary mechanism voting rights groups use to oppose racial discrimination in voting, often bringing lawsuits that challenge electoral maps.

Over the past 40 years, at least 182 successful Section 2 of the VRA cases have been filed. 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 — 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.”

Legal Response

Paul Smith, senior vice president at the Campaign Legal Center, pointed out that “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.”

Richard L. Hasen, a professor of law and political science at the University of California, wrote that the Eighth 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 Eighth 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 itself.”

VRA Gutted

Over the last decade the Supreme Court has generally sought to weaken voting rights for African Americans, falsely claiming race should not 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.

The Supreme Court, by a 5-4 majority, overturned Section 4. This invalidated preclearance. 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 states to be sued for voting discrimination. Since 2013, Section 2 has been the only way civil and voting rights groups could challenge state decisions.

What Happens Next?

Interestingly, in November the conservative U.S. Court of Appeals for the Fifth Circuit affirmed the right of individuals to bring such actions. Given these opposing rulings, the issue may be headed to the Supreme Court.

Since 2013 the Supreme Court has heard many cases filed by civil rights groups and individuals. It did not mention that only the Justice Department must file the suits.

In June, for example, the Court, in a 5-4 decision, ruled against an Alabama congressional map that included only one district with a majority of Black voters. 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.

If the Supreme Court upholds the Eighth Circuit decision that would potentially completely “gut” nationwide limited protections of voting rights. This would 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 Supreme Court to protect voting rights. The Court only last year said the use of 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.

A return to Jim Crow-type racist laws is a reminder how quickly advances in equality can be reversed. It is not the first time this has happened. After the second American Revolution, the Civil War of 1861-65, freed male slaves won the right to vote and became close to equal citizens. Black families were able to own their own land and a few Black men were elected to state and national office.

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 one hundred years to get those civil rights back. That’s why the Supreme Court 2013 decision was seen as a major blow. And the Circuit ruling on who can file suits is an additional blow.

What’s needed in response is a new civil rights struggle. It is the only way to reverse decisions that uphold the legacy of white supremacy of the Founding Fathers.