Last week there were a couple of court rulings which, if nothing else, changed the context for the special redistricting session, which begins Wednesday under the Golden Dome.
In a case involving the Arkansas legislature, the 8th District Court of Appeals in St. Louis upheld a lower court ruling that only the U.S. attorney general, not private groups or citizens, can bring cases under Section 2 of the Voting Rights Act. The sweeping decision only applies to the seven states in the 8th District, but it’s certain to be appealed to the U.S. Supreme Court.
The court case that led to the special session in Georgia was brought by private groups, as was an earlier case in Alabama, which was cited as precedent in the Georgia case. As was nearly every case, for that matter, which has been brought under Section 2 for decades.
When the U.S. Supreme Court upheld the ruling in the Alabama case recently, it implicitly accepted the precedent of private groups bringing cases, setting up a conflict with the ruling by the 8th District last week.
The Arkansas case was decided by the argument that the Voting Rights Act doesn’t explicitly allow organizations like the NAACP Legal Defense Fund to bring cases, while it implicitly describes the U.S. attorney general to play that role.
“Our cases have assumed — without deciding — that the Voting Rights Act of 1965 furnishes an implied cause of action under Section 2,” Justice Neil Gorsuch wrote as an aside in a 2021 concurring opinion in another voting rights case. In this case, he seems to have forced the issue.
None of this changes the fact that Georgia’s congressional and legislative maps have been stricken down, and the General Assembly now faces the uncomfortable task of drawing new lines for themselves and the congressional delegation. Some Republicans might be tempted to resist a court order premised on an understanding of the Voting Rights Act, which has been successfully challenged, But that is more than balanced by the knowledge that if they don’t draw new maps, U.S. District Judge Steve Jones will draw them, and they’ll have to run for office on his map.
Nevertheless, this is going to be a map drawing session conducted under a volcano. The Voting Rights Act has been pronounced dead and buried more than once, but this case will be a severe test. The judge in the Arkansas case, which the appeals court upheld, ruled that civil rights groups had presented a “strong merits case” that some state house districts violated the law, but the groups who pointed this out didn’t have standing. This is likely to add new urgency to the effort to pass the John Lewis Voting Rights Advancement Act, which is aimed at patching some of the leaks in the nearly 60-year-old law.
The second ruling came from a three-judge panel of the 11th Circuit Court of Appeals in Atlanta. After mulling over the question for nearly a year at the direction of the U.S. Supreme Court, the court ruled that it had been right in the first place and, for a second time, reversed a decision that Georgia’s system of electing public service commissioners violated the Voting Rights Act.
“Plaintiffs’ novel proposal is that we dismantle Georgia’s statewide PSC system and replace it with an entirely new districted system,” the panel said in its ruling. “But we have never gone this far.”
That will be taken as another sign of a rightward tilt in the courts’ approach to voting rights cases. The current system of electing commissioners was itself a “novel proposal” when it was enacted to replace the old system, in which candidates ran statewide and could live where they wanted. But it won legislative approval, and for the 11th Circuit, that’s decisive.
So the state will continue to require PSC members to reside in five separate districts but be elected statewide. The PSC districts weren’t on the table for this special session, and the decision last Friday means it probably won’t get there.
Back in April, the plaintiffs in the Georgia case petitioned federal Judge Steven Grimberg to begin drawing a reapportioned PSC map, but nothing ever seems to have come of that. A quick trot through the 11th Circuit opinion reveals no mention of the subject either. Perhaps we’ll learn more on that subject as the festival of map drawing begins.
