WASHINGTON D.C. — Last week, Republican attorneys general from Alabama and 12 other states submitted an amicus brief further escalating Republicans’ ongoing attack on the Voting Rights Act.
The “friend-of-the-court” brief was submitted on behalf of 13 attorneys general — from Alabama, Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Mississippi, Montana, Nebraska, South Carolina, Texas and West Virginia — in a case challenging Louisiana’s congressional map.
The Republican attorneys general are supporting Louisiana’s radical and destructive legal argument that private groups and individuals do not have the right to file lawsuits under Section 2 of the Voting Rights Act. In legal terms, this is known as a private right of action. The brief reads, “Section 2 contains no express private right of action. And the VRA’s structure confirms that the provision creates no implied private right of action either.”
Under this theory that Section 2 does not contain a private right of action, only the U.S. attorney general, and not groups such as the civil rights organizations who are responsible for the majority of redistricting lawsuits, would be able to file lawsuits challenging maps under Section 2. This brief was filed less than one month after the 8th U.S. Circuit Court of Appeals issued a catastrophic decision ruling that private litigants cannot bring Section 2 claims in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota..
As the dissent in the 8th Circuit’s opinion cites from experts, “Over the past forty years, there have been at least 182 successful Section 2 cases; of those 182 cases, only 15 were brought solely by the Attorney General.”
Soon after, Louisiana Republicans asked the 5th U.S. Circuit Court of Appeals to rehear a decision that held that private parties, like organizations and voters, can bring lawsuits under Section 2 in the three states covered by the 5th Circuit: Louisiana, Mississippi and Texas.
The brief — which is filed in support of the entire 5th Circuit rehearing the case — directly cites the 8th Circuit decision stating that the 5th Circuit’s prior decision affirming a private right of action “conflicts with the Eighth Circuit’s conclusion that Section 2 did not create a private right to sue.”
If the 5th Circuit were to follow the 8th Circuit’s lead, voters in three more states would similarly be without legal recourse for maps that dilute minority voters’ voting power.