A coalition of Republican officials that includes Georgia Attorney General Chris Carr wants to substantially weaken a key provision of the federal Voting Rights Act — a crowning achievement of the Civil Rights Movement.
For decades groups and advocates have filed lawsuits to enforce Section 2 of the act, which prohibits racial discrimination in voting practices and procedures. But in federal court cases in Georgia and elsewhere, Carr and his Republican colleagues argue the anti-discrimination provision cannot be enforced by private lawsuits.
Last year a federal appeals court agreed, ruling only the U.S. attorney general can enforce the provision. Two Supreme Court justices also have signaled they’re open to such arguments.
Voting rights advocates say prohibiting private lawsuits would further undermine enforcement of a key civil rights law that has already been weakened by previous court rulings. One measure of the potential impact: Of 182 successful Section 2 cases over the past 40 years, only 15 were filed solely by the U.S. attorney general.
“It’s definitely one of the many indicators that we can’t assume that the existing law that protects the right to vote is going to get the kind of respect that either politicians or the courts have given it in the past,” said Kareem Crayton, an attorney and voting rights expert for the liberal-leaning Brennan Center for Justice in New York.
In court documents, more than a dozen Republican attorneys general — including Carr — have argued Congress never explicitly authorized private lawsuits under the provision, and courts should no longer assume they’re allowed.
“The task is to interpret the text of Section 2, not to entertain unauthorized private suits because ‘that’s the way it’s always been done,’” they wrote last year in a Louisiana case.
“Attorney General Carr is preserving the Voting Rights Act as written,” said Kara Murray, his spokesperson. “Any changes to the law should be made through Congress, not the courts.”
For a century after the Civil War, Georgia and other Southern states thwarted the ability of Black citizens to vote and otherwise participate in public life. Beginning in the 1950s, the Civil Rights Movement — led by the likes of the Rev. Martin Luther King Jr. of Atlanta — chipped away at legal segregation and discrimination.
That effort culminated in a series of new civil rights laws, including the Voting Rights Act of 1965. Among other things, the act outlawed practices such as literacy tests that had been used to prevent Black people from voting. Black voter registration soared after the law took effect, and numerous minority candidates were elected to federal, state and local offices.
Congress has amended the act several times. Today it prohibits actions that have a discriminatory effect, even if unintended.
Just last year, a federal judge ordered the Georgia General Assembly to redraw state legislative and congressional district maps, saying they illegally diluted Black voting strength in violation of Section 2 of the Voting Rights Act. Legislators redrew the maps in the fall to create additional Black-majority districts, and the judge later upheld the new districts.
But the state appealed the judge’s original decision, and the future of the Voting Rights Act could hinge on the outcome.
In court documents, Carr — whose job includes defending the state in lawsuits — argues the federal judge’s decision was wrong on numerous grounds. Among other things, he argues Georgia Black voters are so successful at electing their preferred candidates that the judge’s order to create more Black-majority districts is unnecessary and amounts to unconstitutional “racial gerrymandering.”
For decades, white lawmakers were accused of “racial gerrymandering” for trying to draw lines to protect white colleagues and elect white candidates.
But perhaps the most eye-catching argument is that the plaintiffs — including the American Civil Liberties Union and other private organizations and individuals — didn’t have the right to sue Georgia in the first place.
Private parties have filed hundreds of lawsuits to enforce Section 2 of the Voting Rights Act over the decades. Charles Bullock, a political scientist and voting rights expert at the University of Georgia, said private lawsuits have played an outsized role in enforcing the law.
“From the outset, private parties have brought the cases and the bulk of them were brought by private parties,” Bullock said. “Until recently, no one questioned this.”
In court documents, the Georgia plaintiffs and the U.S. Justice Department say it’s clear Congress intended to authorize private Section 2 lawsuits when it passed the Voting Rights Act. And if it had a problem with such lawsuits, they say Congress could have prohibited them when it reauthorized the act on numerous occasions.
They also argue federal courts — including the U.S. Supreme Court — have repeatedly held that private lawsuits are authorized under the provision. The Supreme Court has ruled on numerous Section 2 lawsuits filed by private plaintiffs — including a case last year in which the court held Alabama congressional district maps illegally diluted the voting power of Black voters.
In court documents, Carr and the other Republicans argue Congress could have authorized private lawsuits under Section 2, but it didn’t. Nowhere in the text of the provision does it explicitly authorize such lawsuits, they say.
Courts have held private lawsuits are implicitly authorized in Section 2 and can be inferred from other provisions of the Voting Rights Act. But Carr says the courts simply assumed private lawsuits were authorized without directly addressing the issue.
The plaintiffs and the Justice Department disagree. But questions about the legality of private voting rights lawsuits have been gaining steam.
The question apparently first arose in 2021, when Supreme Court Justice Neil Gorsuch raised the issue in a voting rights case in which no one had argued private lawsuits aren’t allowed. Justice Clarence Thomas joined Gorsuch in that concurring opinion.
The argument got a big boost in 2022, when a federal judge in Arkansas ruled Black voters could not challenge state legislative districts under Section 2. According to the judge, only the U.S. attorney general can enforce the provision.
The Arkansas plaintiffs appealed the decision. But last year, the 8th U.S. Circuit Court of Appeals upheld the ruling. Now Carr and other Republican attorneys general are making the same arguments in the Georgia case, which is pending in the 11th U.S. Circuit Court of Appeals.
The issue seems destined for the Supreme Court. Some conservative legal scholars hope the court will end private Section 2 lawsuits.
“The Voting Rights Act remains intact as a tool to prevent actual discrimination and disenfranchisement,” Jason Snead, executive director of the conservative Honest Elections Project, said last year after the 8th Circuit ruling. “But the VRA is not, and was never intended to be, a partisan weapon against democratically enacted election integrity laws and redistricting practices.”
Voting rights advocates say prohibiting private Section 2 lawsuits could hobble enforcement of the Voting Rights Act. They say the Justice Department doesn’t have the resources to pursue every case of illegal discrimination.
“It’s reopened the door to an era (of discrimination) that we thought we had resolved,” the Brennan Center’s Crayton said.
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