In today’s Good News/Bad News Report, a federal appeals court yesterday ruled that individuals and groups (like the NAACP) have no right to sue for protection under the Voting Rights Act.
The Good News is that this does not pertain to the entire Voting Rights Act, only to Section 2, which is the part that deals with the drawing of political maps and creating districts. By a vote of 2-to-1, the court ruled that only the U.S. Attorney General has the right to enforce Section 2. The Bad News is that even though this decision was limited to just one section of the Voting Rights Act, it's probably the major section, and the ruing helps gut so much of the protections, undoing 60 years of precedent since the Act was passed in 1965. The court deciding the case was the 8th Circuit Court of Appeals based in St. Louis. The one dissenting vote came from the Chief Judge Lavenski R. Smith. He 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.” In voting the overturn the decades-old precedent, the two Appeals Court judges in the majority relied on another missing passage, somewhat similar to an nagging issue in the 14th Amendment challenges where all government officers who swear an oath to defend the U.S. Constitution are subject to being prohibited from running for office if they’ve been involved in Insurrection, but different from everyone else taking such an oath, the president swears to “preserve and protect”. For this case, the semantic issue is that other federal laws, like the 1964 Civil Rights Act, are explicit in stating when private groups can sue – however, for whatever reason, the same language doesn’t exist in the Voting Rights Act. As a result, in their ruling, the majority wrote that “When those details are missing, it is not our place to fill in the gaps, except when ‘text and structure’ require it.” My legal opinions, of course, have next to no judicial standing. (“Next to no” shall be read here as meaning “Zeo.”) But it would seem that, as long as the majority is focusing on missing details, another detail missing is the text stating that only the U.S. Attorney General can enforce the provision, and so filling in the details to give him that sole right appears to be doing precisely what the two-person majority are saying they can’t do -- especially when there is 60 years of precedent saying otherwise. And also when other federal laws, such as the companion 1964 Civil Rights Act say otherwise. While I certainly understand the point that these other federal laws did include the right of individuals and private groups to sue, and Section 2 of the Voting Rights Act doesn’t do so, that’s still not the same as the Voting Rights Act specifically stating that individuals and private groups don’t have the same right. The point being, again, that the majority is making it their place “to fill in the gaps.” They’ve just chosen the gaps they want to fill in. By way of fact worth noting, this majority opinion was written by Judge David R. Stras who was nominated for the Appeals Court by (okay, are you sitting down…?) Trump, something which I’m sure will stun and flabbergast people, though mostly only those who are easily flabbergasted and stunned. Interestingly, though, the other two judges on the Appeals Court (including the Chief Judge who dissented) were both nominated by then-President George W. Bush. It seems likely that there will be an appeal to the Supreme Court, though at the moment no private group has announced their attention. The ACLU did say they were exploring their options. No word yet from the NAACP. Surprisingly, two conservative Justices on the Supreme Court – Neal Gorsuch and Clarence Thomas -- have made statements in the past that supported private groups retaining the right to sue on Section 2. On the other hand, both men previously voted to strip down the Voting Rights Act in an earlier case. So, expecting this Court to protect voting rights is not one that seems wise to rely on. One can hope, though. After all, voting rights is one of those things that, especially these days, seems kind of, yknow, somewhat incredibly important.
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AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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