Attorneys representing those who have challenged Arkansas’ state and federal redistricting plans believe a pair of Thursday U.S. Supreme Court decisions could breathe new life into their lawsuits against the state.
The American Civil Liberties Union sent a letter to the 8th U.S. Circuit Court of Appeals on Friday, noting that Thursday decisions by the nation’s high court affirmed private citizens’ right to enforce federal laws through the courts.
The U.S. Department of Justice submitted a similar letter in the case Friday.
The ACLU represents the Arkansas State Conference NAACP and the Arkansas Public Policy Panel in a federal challenge of Arkansas’ 2021 redrawing of the state House of Representatives map. A federal judge dismissed the lawsuit in a ruling that upended decades of precedent that Section 2 of the Voting Rights Act of 1965 could be enforced through a private right of action. That ruling is on appeal.
Also Friday, an attorney for six Central Arkansas voters and a pair of state lawmakers who challenged Arkansas’ redrawn 2nd Congressional District said the U.S. Supreme Court’s decision in the Alabama redistricting case, Allen v. Mulligan, could help his clients’ case on appeal.
A federal three-judge panel dismissed that case two weeks ago on grounds the plaintiffs failed to show that race was the “predominant factor” in forming the new congressional map.
“If the Supreme Court’s decision is followed, we would be allowed to use the effects of the Arkansas Legislature’s Reapportionment Act to show its intent to discriminate against the 22,000 Black voters who were gerrymandered from the Second District into the First and Fourth Districts, rather than having to prove that each member of the Legislature intended to discriminate,” attorney Richard Mays said Friday.
Arkansas Attorney General Tim Griffin disagreed in a statement Friday.
“The Supreme Court’s recent decision has no effect on any of Arkansas’s ongoing redistricting litigation. The Voting Rights Act claim in [the lawsuit brought by Mays] was dismissed months ago and the remainder of the case was recently dismissed because the plaintiff failed to plausibly plead discrimination.”
Both the ACLU’s case and Mays’ case bring challenges under Section 2 of the Voting Rights Act, which prohibits abridging the right to vote on the basis of race.
A third federal lawsuit challenges Arkansas’ congressional redistricting under the 14th and 15th amendments to the U.S. Constitution. It was filed in late May and hasn’t been ruled upon.
A fourth lawsuit was filed as a state court challenge to the congressional map, but it was summarily dismissed.
The General Assembly, in redrawing Arkansas’ congressional districts in 2021, replaced a predominantly Black area of Pulaski County in the 2nd District with predominantly white Cleburne County. Previously, the entirety of Pulaski County was in the 2nd Congressional District and Cleburne was in the 1st District.
Pulaski County is now split among three different congressional districts.
The federal suits challenging the Natural State’s congressional redistricting accused the state Legislature of racial gerrymandering, arguing parts of Pulaski County were “cracked,” or separated from the 2nd Congressional District to split up a voting bloc.
The Supreme Court agreed in the Alabama case that the Alabama Legislature violated the Voting Rights Act in 2021 when it created just one majority-Black congressional district. The plaintiffs in that case argued the approach “packed” Black voters, who tend to vote for Democrats, into a single district, making it more difficult for those outside the district to elect their preferred candidates.
The case isn’t completely analogous to the case in Arkansas, but Mays said the ruling hints at a positive trend.
“It seems to signify that the Court, or at least a majority thereof, is willing to accept Section 2 of the Voting Rights Act as a major protection against state and other government actions to dilute or otherwise abridge the voting rights of minorities,” Mays said. “This follows a period of years in which the Court has whittled down the intended purpose of the Act through decisions imposing restrictions on its use that are not in the Act and were not intended to be.”
However, the court’s ruling also relied on a 1986 SCOTUS decision in Thornburg v. Gingles that created a three-pronged test for establishing Section 2 violations under the Voting Rights Act.
Those three preconditions are:
- The minority group being discriminated against is sufficiently large and geographically compact enough to constitute a majority in a reasonably configured district.
- The minority group must be politically cohesive.
- The minority group must be able to show that the White vote is cohesive enough to defeat the minority group’s preferred candidate.
Those conditions are unlikely to be met in Central Arkansas.
“Gingles is a problem,” Mays said. “It is doubtful that, due to the fact that Blacks only make up about 15% of the population in Arkansas and their population distribution, they are not sufficiently concentrated in areas sufficient to constitute a minority/majority district.
“We are contending that the Voting Rights Act does not impose the restrictions that the Supreme Court created in Gingles, and that it is a violation of the VRA to dilute (crack) communities of Blacks into different districts.”
