Opinion | Step by step, conservative judges are gutting the Voting Rights Act

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The futility of entitlement without a remedy is worse—a cruel myth. And that’s what conservatives want to do with the Voting Rights Act: turn it into a nightmare.

A new decision by a federal appeals court could accomplish its mission — and pose a serious challenge to the conservative-dominated Supreme Court. Will he be an activist to enforce an ideology or respect decades of practice and precedent?

of Voting Rights Act In the year It was enacted in 1965, and in the decades that followed, the universal assumption was that private parties—constituents demanding their rights or interest groups representing them—could go to court to seek legal protections. Lawmakers, litigators and judges have taken it that Section 2 of the Voting Rights Act allows the Justice Department to prosecute private parties in addition to enforcement.

But in 2021, the conservative majority of the Supreme Court is radical Rewrite part 2Creating new restrictions that would make it harder to win cases under this provision, which would prohibit any “standard, practice or practice” that would make it disproportionately difficult to vote for minorities. This was not enough, Judge Neil M. Gorsuch, who took the opportunity to join all of the invited states and other defendants in Voting Rights Act cases, filed a joint motion to challenge the validity of the individual lawsuits.

.SimilarityJoined by Justice Clarence Thomas, A Dishonest job It’s crammed into one paragraph. “Lower courts have treated this as an open question” in support of the claim that A A single appellate court case He only raised the matter in passing. The decision from 1981 before Congress rewrote the law to strengthen Section 2, and in doing so made it clear that the section was intended to authorize Personal charges. “Citizens are intended to have a private cause of action to enforce their rights under Section 2.” Home report On the stated law.

Communication had the intended effect. Next February, Trump-appointed Arkansas District Court Judge Lee Rudofsky; He raised a question The right of private parties to sue in government cases where the plaintiffs did not even raise the issue. That didn’t stop Rudofsky from saying he was forced to kick the addiction.

Last week Split panel The US Court of Appeals for the 8th Circuit agreed. The “text and structure” of Section 2 did not give Congress the right to sue private plaintiffs, said Judge David Strauss, another Trump appointee, joined by George W. Bush nominee Raymond Grunder. “Courts have assumed that in most cases for the past half century. [Section 2] It is personally enforceable. A closer look reveals that this assumption rests on a weak footing,” Strauss wrote.

Case closed. Charge dismissed. Rights revoked.

Lavinsky Smith’s dissenting opinion, appointed by George W. Bush, explains what a remarkable journey this has been — and what an incredible act of judicial chutzpah. The Supreme Court hasn’t addressed the question directly, Smith said, but Section 2 has repeatedly addressed cases involving private parties, including a decision earlier this year in a review case in Alabama. The Supreme Court ruled that other sections of the Voting Rights Act allow private suits; In the year In 1996, Article 2 of the Voting Rights Act was enacted by Congress in 1996.

“Until the courts decide or Congress amends the law, I will uphold the existing law that allows citizens to seek judicial remedies,” Smith wrote in the dissent. “The fundamental rights of self-government and citizenship should not depend solely on the discretion or availability of government agents to seek protection.”

Indeed. Voting issues are complex and time-consuming. There’s only so much the Justice Department can do—even in administrations interested in enforcing the law. Smith noted that of at least 182 successful Section 2 cases over the past 40 years, only 15 have been brought by the Attorney General alone.

Therefore, the termination of suits by private parties seriously undermines the effectiveness of the Act when other provisions have already been repealed.

Which is, of course, exactly, the point. The Friend of the Court brief, created by Federalist Society Field Marshal Leonard Leo of the Honest Choice Project, argues that such a restriction “furthers important public policy interests” because the law is “abused by private plaintiffs.” And — get this — it correlates with a “significant decline” in public confidence in election results.

Talk about blaming the victim.

The Court of Appeals was correct that section 2 did not expressly contain a private right to sue. In recent years, the court has been reluctant to recognize such authority unless it is clearly stated, and has increasingly moved away from relying on legislative history. If the courts were to act on the newly enacted law, that would be one thing.

But changing the provisions of the nearly six-decade-old, substantive definition of the Voting Rights Act that allows private prosecution is an entirely different matter. How was the past and revised Congressional Voting Rights Act supposed to read the minds of future courts?

Law works only in a system of predictable rules. The alternative is instability and chaos. In this court, there are constitutional rights, until—for nearly half a century—they have not. The law has a right to sue, until it doesn’t. And please spare me any talk about the primacy of the text. A court that has written new restrictions on section 2 has no standing on this subject.

The judges are going to decide this question. It’s far more significant, and conflicts with the ultraconservative 5th Circuit decision earlier this month that got it right. How the issue is resolved will not only shape the future of voting rights. It thus demonstrates the desire of the conservative majority to wreak havoc on the law under the guise of a convenient text.



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