By Jon King, Michigan Advance
Following a federal court ruling limiting the scope of the Voting Rights Act, Michigan officials say the urgency has only increased to pass state-level legislation to protect minority voters.
On Monday, November 20, a three-judge panel of the 8th U.S. Circuit Court of Appeals ruled that only the United States attorney general can enforce the Voting Rights Act of 1965 (VRA), and thus private individuals can’t sue under Section 2 of the VRA, which prohibits abridging the right to vote on the basis of race.
The decision, which affirmed a lower court’s ruling, dismissed a case challenging Arkansas’ state redistricting map, which the plaintiffs alleged diluted that state’s Black vote. The appellate panel also dismissed the case with prejudice, meaning the same claim cannot be filed again by the plaintiffs, which included the American Civil Liberties Union (ACLU), the Arkansas State Conference NAACP and the Arkansas Public Policy Panel.
While GOP Arkansas Attorney General Tim Griffin — a member of the redistricting board, along with the governor and secretary of state — praised the decision in a statement as “a victory for our citizens and for the rule of law,” voting rights advocates argue it is the opposite of that.
“This ruling is a travesty for democracy,” said Sophia Lin Lakin, director of the ACLU’s Voting Rights Project, who argued the appeal on behalf of the challengers. “By failing to reverse the district court’s radical decision, the Eighth Circuit has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for.”
Voting rights supporters in Michigan have also been clear in their condemnation, including Jamie Lyons-Eddy, executive director of Voters Not Politicians, which helped lead a successful voting rights ballot initiative in 2022.
“This calamitous ruling is a devastating blow to voters’ rights,” Lyons-Eddy told the Advance. “The decision fundamentally inhibits the ability of voters in this country to advocate for their own constitutional rights. In our country, political power belongs to the people, and it is not the place for ideological judges to decide that the people have no right to advocate for their right to vote and freely elect their preferred representatives. If you are not alarmed by the pattern of extremist judges tearing down voter protections in America, you’re not paying attention.”
That sentiment was echoed by Secretary of State Jocelyn Benson, a Democrat.
“Never before has a court dealt such a blow to the Voting Rights Act,” she posted to social media. “Eliminating the ability of citizens to sue under the VRA and seek protection from discriminatory voting laws eliminates the essence of the Act. It’s an outrageously flawed decision.”
Attorney and election law expert Mark Brewer, who’s also a former chair of the Michigan Democratic Party, said on social media that the ruling proved “Michigan needs its own voting rights act to provide protection for minority voters because the federal Voting Rights Act has been shredded by the federal courts and is no longer adequate to the task[.]”
In response to Brewer’s comment, Benson noted that such an effort has already been put forward in the Michigan Legislature this term.
“Ahem, good thing Senator @darrincamilleri introduced the Michigan Voting Rights Act in June on the 10th anniversary of another case that significantly weakened the federal VRA,” she posted. “Hope our lawmakers recognize the importance of ensuring Michigan voters are protected and #PasstheMVRA[.]”
The MVRA, or Michigan Voting Rights Act, consists of Senate Bills 401, 402, 403 and 404. It was introduced in June and sponsored by state Sens. Darrin Camilleri (D-Trenton), Stephanie Chang (D-Detroit), Erika Geiss (D-Taylor) and Jeremy Moss (D-Southfield).
Camilleri earlier told the Michigan Advance that the package began as a conversation with Benson last December about what lawmakers could do to protect voting rights at the state level.
All four bills remain in the Senate Elections and Ethics Committee, which is chaired by Moss, who has yet to return a request for comment by the Advance.
Meanwhile, the lone dissenting vote in Monday’s decision came from Chief Judge Lavenski Smith, an Arkansas native and the 8th circuit’s first Black chief justice, who said the ruling upended long-standing precedent set down by the U.S. Supreme Court which had concluded in other cases that a private right of action does exist under Section 2.
“Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote. “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection. Resolution of whether Sec. 2 affords plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance.”
And that’s just where this particular case may be headed. As Politico reported, because other federal courts have recently ruled that Section 2 of the VRA does have a private right of action, legal experts expect the case to end up in front of the U.S. Supreme Court, although the full 8th Circuit could also be convinced to rule on the case first.
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