Fifth Circuit Denies Louisiana's Attempt to Thwart Private Plaintiffs' Right to Sue Under Section 2 of the VRA; Eighth Circuit Panel Decision Remains a Radical Outlier

Affiliate: ACLU of Louisiana
December 15, 2023 1:30 pm

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NEW ORLEANS — The Fifth Circuit Court of Appeals denied Louisiana’s petition for a rehearing in Robinson v. Ardoin, a case brought by the American Civil Liberties Union, Legal Defense Fund, and partners challenging the state’s racially discriminatory congressional map.

In its petition, the state asked the full Fifth Circuit to reconsider the right of individuals to sue to protect their voting rights under Section 2 of the Voting Rights Act of 1965 (VRA). By denying the petition, the court reaffirmed this right, which was recently threatened in the lawsuit challenging Arkansas’ House district map that robs Black Arkansans an equal opportunity to participate in the political process and elect candidates of their choice.

On Nov. 20, a split panel of the Eighth Circuit Court of Appeals affirmed a lower court’s unprecedented ruling in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, which radically concluded that voters may not sue to protect their voting rights under Section 2. This ruling contradicts decades of precedent, including from the U.S. Supreme Court and the Eighth Circuit itself, and every other source of authority on this question. Today’s order from the Fifth Circuit reaffirms the right of impacted individuals — many of whom are Black, Native, or members otherwise historically disenfranchised communities — to hold their elected officials accountable and remedy voter discrimination.

The Arkansas State Conference NAACP and the Arkansas Public Policy Panel are represented by the ACLU, ACLU of Arkansas, Law Office of Bryan L. Sells LLC, and Dechert LLP.

“Today’s order demonstrates yet again the radical nature of the Eighth Circuit ruling and confirms what 60 years of battle-tested precedent has made clear: The right to private action exists and isn’t going anywhere,” said Sophia Lin Lakin, director of the ACLU’s Voting Rights Project. “We will continue to represent voters who face racial discrimination in violation of federal law until our democracy works as it should.”

“There is a six-decade precedent that allows private citizens and organizations to sue the government under Section 2 of the Voting Rights Act for such violations,” said Kymara Seals, policy director at the Arkansas Public Policy Panel. “Only allowing the government to sue the government is unjust, and today, the Fifth Circuit agreed. We look forward to fighting for both fair maps in Arkansas and the right for voters to challenge racially discriminatory voting laws across the nation.”

“The NAACP has long relied on the protections of the Voting Rights Act to advocate, mobilize, and litigate on behalf of the Black community,” said Dominik Whitehead, NAACP vice president of campaigns. “Every voice matters in shaping the future of democracy in America and we’re prepared to continue the work necessary to protect Black voters.”

The court’s order is here:

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