Dem
47
GOP
53
The Supreme Court, over a decade ago, gutted a key provision of the Voting Rights Act (VRA), declaring that states with histories of discrimination no longer had to get federal pre-clearance before changing voting rules. The direct result of this was the passage of a slew of Voter ID laws, and other measures meant to make it harder to vote, especially for poor and minority voters.
Now, there has been another pretty big setback. Section 2 of the VRA, which was updated by Congress in 1982, affirms that citizens have the right to vote, and also the right to equal representation in government, and says that if those rights are infringed upon, a lawsuit can be brought against the city, county, state, etc. alleged to be responsible for the infringement. Critically, since that legislation became law, it has been understood that there are two entities with standing to sue under it: (1) the Department of Justice, and (2) the individuals who think their civil rights have been violated. Since 1982, 466 Section 2 cases have been brought, and only 18 of those were instigated by the DoJ.
In 2021, the Turtle Mountain Band of Chippewa Indians brought suit against state Secretary of State of North Dakota Michael Howe (R). Their argument was that the state's legislative maps were drawn in such a way as to dilute Native American representation in the legislature. The case bounced around the courts for 4 years, and yesterday, a three-judge panel on the U.S. Court of Appeals for the Eighth Circuit ruled against the Chippewa, 2-1. The Court did not concern itself with the merits of the case, however, and instead decided that the plaintiffs did not have standing to sue, as only the DoJ is allowed to bring such actions.
This finding, on the strength of votes from one Donald Trump appointee and one George W. Bush appointee (though with a dissent from a different Bush appointee), runs contrary to both the original intent of the law and to more than 40 years of precedent. Again, over 400 non-DoJ plaintiffs have filed Section 2 suits previously without issue.
At this point, the plaintiffs have a hard decision to make. If they accept the decision, then in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, only the DoJ will be able to bring voting rights lawsuits. And the current DoJ, including "Attorney General" Pam Bondi, has made clear that it has no interest (not that the DoJs of previous administrations were exactly lighting up the dockets, with an average of roughly one case every 2½ years). Alternatively, the Chippewa can appeal to the U.S. Supreme Court. And if the Supreme Court takes the case, well, there are two judges who have already signaled their support for yesterday's decision (Clarence Thomas and Neil Gorsuch), and another (John Roberts) who is rather well known for his apathy for the VRA. So, there's an excellent chance that an appeal ends with the limits on Section 2 suits being extended nationwide, as opposed to being limited to just the Eighth Circuit. It's definitely a Sophie's Choice for the Chippewa and their lawyers. (Z)