Republican Attorneys General Continue To Undermine Voting Rights Act

WASHINGTON, D.C. — Attorney General Theodore Rokita is the latest Republican official to join the chorus of Republicans in the 11th, 5th, 6th, 7th and 8th circuits arguing that private parties cannot sue under the Voting Rights Act. Now, the 7th U.S. Circuit Court of Appeals will be the latest appellate court to address this radical legal argument that stands to impact Illinois, Indiana, and Wisconsin. 

In a case challenging the electoral method for state court judges under Section 2 of the Voting Rights Act, Rokita argues that the voters and officials who brought the lawsuit should not have been able to do so. “Congress’s decision to charge the Attorney General with enforcing § 2 reinforces that no private right of action exists,” the brief reads. 

Indiana law requires the three counties to appoint superior court judges through a selection committee process instead of by holding elections. Voters in these counties cannot directly elect any new candidates to their superior courts. In Indiana’s 89 other counties, which are predominantly white, voters elect their county superior court judges. 

The plaintiffs argue that preventing these counties from holding judicial elections violates the Voting Rights Act as it denies a significant proportion of minority voters, including 49% of minority voters and 66% of all Black voters in Indiana, an opportunity to vote for superior court judges. The state is defending this unjust electoral system by saying voters should not have been able to bring the lawsuit in the first place. 

Republican attorneys general continue to promote the theory that Section 2 of the Voting Rights Act does not contain a private right of action, arguing that only the U.S. attorney general, not private individuals or civil rights organizations can sue to rectify perceived violations. 

After a catastrophic 2-1 ruling from the 8th U.S. Circuit Court of Appeals voters across seven states — in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota — will not be able to use Section 2 to fight unfair districts or discriminatory voting laws. Since this ruling, Republicans have not relented in their fight to chip away at the Voting Rights Act. 

There remains established precedent for a private right of action under Section 2 of the VRA in the 5th, 6th and 11th circuits, but Republicans are actively trying to do away with that precedent across the country. According to Democracy Docket’s litigation database, 23 out of the country’s 27 Republican attorneys general have expressed support for this theory, which stands to severely weaken the Voting Rights Act if applied across multiple jurisdictions. 

Recently, Georgia Attorney General Christopher Carr and Ohio Attorney General David Yost also touted this harmful argument in defending Georgia’s omnibus voter suppression law, Senate Bill 202 and Ohio’s congressional map. 

Read Indiana and Lake County’s brief here. 

Learn more about the case here.