The United States Supreme Court on Monday revived a previously dismissed lawsuit challenging Arkansas’s congressional maps, ordering the case back to a lower federal court. The Supreme Court said the lower court must apply the standards the high court laid out last month in a gerrymandering case out of South Carolina.
But considering the South Carolina decision holds would-be plaintiffs to an even higher pleading standard than was previously required — and considering the plaintiffs’ case was previously dismissed after failing to clear that lower bar — today’s reversal appears unlikely to be good news for the plaintiffs.
The Arkansas case that was reversed today was originally filed in 2022 in the U.S. District Court for the Eastern District of Arkansas. The plaintiffs — six Black Arkansans, including State Sen. Linda Chesterfield (D-Little Rock) and State Rep. Denise Ennett (D-Little Rock) — filed suit against the state of Arkansas, then-Gov. Asa Hutchinson and Sec. of State John Thurston. Both men were sued in their official capacities only.
The lawsuit challenges a new map drawn by a state panel after the 2020 Census that split Pulaski County between three congressional districts. The plaintiffs allege that removing certain Black voters from the Second District — which previously contained all of Pulaski County — and putting them in the First or Fourth Districts unconstitutionally diluted the Black vote in the Second District.
A three-judge panel dismissed the case in May of last year. Applying a test previously laid out by the Supreme Court, the judges found the plaintiffs had failed to “create a plausible inference that race was the ‘predominant factor’ behind the adoption of” the new congressional map. Rather, the court found the map’s drafters and sponsors had given plausible “alternative explanations” for how the maps are drawn — attempting to achieve numerical equality between the congressional districts and attempting to increase the percentage of Republicans in a given district. (Though racial gerrymandering is technically impermissible, the U.S. Supreme Court said in 2019 that partisan gerrymandering is outside the scope of court review.)
Because they were asserting a constitutional challenge to a redistricting map, federal law enabled the plaintiffs to appeal directly to the Supreme Court. Last month, while that appeal was pending, the high court handed down their decision in another racial gerrymandering case, this one out of South Carolina.
The South Carolina Legislature drew new congressional and legislative maps following the 2020 Census. South Carolina lawmakers said their goals with the new maps were to increase the Republican tilt of one district in the state and raise the Black voting-age population in the district as well. In January 2023, a three-judge panel of the U.S. District Court for the District of South Carolina struck down the new maps as unconstitutional racial gerrymanders.
Less than two weeks ago, while the Arkansas appeal was still pending, the Supreme Court reversed the lower court in South Carolina. Justice Samuel Alito, writing for a 6-3 majority, found the district court had clearly erred when it failed to “disentangle race from politics” in their analysis of the new maps because the plaintiffs in that case “did not satisfy the demanding burden of showing that the legislature subordinated traditional race-neutral districting principles to racial considerations.” Instead, Alito wrote, the plaintiffs presented no direct evidence of a racial gerrymander and only “very weak” circumstantial evidence.
Alito’s opinion did not stop there. The lower court in South Carolina — like the lower court in Arkansas — had looked at whether race played a “predominant role” in the redistricting process. That was not the correct test, according to Alito.
“A plaintiff pressing a vote-dilution claim,” Alito wrote, “cannot prevail simply by showing that race played a predominant role in the districting process, but rather must show that the State enacted a particular voting scheme as a purposeful device to minimize or cancel out the voting potential of racial or ethnic minorities.” A plaintiff bringing such a claim “must show that the State’s redistricting plan ‘has the purpose and effect’ of diluting the minority vote,” he said.
In other words, under Alito’s test, it’s no longer sufficient to show that race was the “predominant factor” in a state adopting a specific map. Instead, a plaintiff has to make an affirmative showing that the purpose of the map was to dilute the voting power of racial minorities and that the map did so.
This more stringent test likely spells bad news for the Arkansas plaintiffs. After all, the South Carolina plaintiffs won in the lower court under the old “predominant role” test. The Arkansas plaintiffs lost under that less-stringent test. If the Arkansas plaintiffs could not clear the lower bar, it’s unclear how they could meet the higher standard they’ll face in the district court after today’s reversal.
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Today’s reversal deals with only one of two voting-related lawsuits against the state of Arkansas currently making their way through the federal court system. It’s distinct from the voting-rights lawsuit brought by the Arkansas chapter of the American Civil Liberties Union and the Arkansas Public Policy Panel, which challenges a redrawn map for the Arkansas House of Representatives.
In February 2022, U.S. District Judge Lee Rudofsky dismissed that lawsuit, but not because the plaintiffs’ claims lacked merit. Instead, he said, they lacked standing to bring the case.
Rudofsky said Section 2 of the Voting Rights Act — the landmark 1965 civil rights legislation meant to keep states from disenfranchising Black and other minority voters — requires the U.S. Justice Department to bring any cases challenging maps under the act and cannot be enforced by a private party. This was not an argument raised by the Arkansas attorney general in the case, but rather an issue Rudofsky raised on his own.
The Eighth Circuit Court of Appeals affirmed Rudofsky’s decision in a 2-1 decision in November. Judge Lavenski Smith dissented, arguing that courts had acknowledged a private right of action under Section 2 of the Voting Rights Act “for decades and throughout hundreds of cases.” Unless and until the Supreme Court decided to rule that no private right of action existed, Smith said, the Eighth Circuit should not break with decades of precedent and hold there was no such right.
Plaintiffs in that case have filed a notice of appeal in the hopes the Supreme Court will take up the case and reverse both the district court and the Eighth Circuit. Will they succeed? On one hand, the high court did say in 1969, “the achievement of the [Voting Rights] Act’s laudable goal could be severely hampered … if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General.” The Supreme Court went further in 1996, saying, “Although § 2, like § 5, provides no right to sue on its face, the existence of the private right of action under Section 2 has been clearly intended by Congress since 1965.”
On the other hand, the makeup of the current Supreme Court is nothing like in 1969 or 1996. Rudofsky’s idea about Section 2 of the Voting Rights Act appears to come directly from something Justice Neil Gorsuch wrote in 2021. Alito and Justice Clarence Thomas have historically been hostile to the Voting Rights Act and voting rights in general. Justice Amy Coney Barrett sided with Alito, Gorsuch, and Thomas last summer in a dissent in a case from Alabama brought under Section 2 of the Voting Rights Act.
If that conservative quadrumvirate holds in the Arkansas Voting Rights Act case, the plaintiffs will have to walk the narrowest possible path to get five votes and have Rudofsky’s decision overturned.