Natural State News

Elections analyst Jason Snead, executive director of the Honest Elections Project, said that it’s too early to say what the impact of a federal judge’s dismissal of an Arkansas redistricting case on the 1965 Voting Rights Act (VRA) will be.

In the case, U.S. District Judge Lee Rudofsky ruled that the private parties who brought the action over the redrawing of statehouse maps, the Arkansas Public Policy Panel and Arkansas State Conference NAACP, lack standing in the case. The Department of Justice, the judge ruled, had to join the case as a plaintiff.

Snead said that there is uncertainty over whether private parties can sue citing Section 2 of the VRA, which prohibits voting practices and procedures based on race if the alleged violations are effects-based and not intentional.

“It’s clear that private parties can sue if the intent of the change in voting is to discriminate,” Snead told Natural State News, “but in the [Mark] Brnovich case, Supreme Court Justice (Neil) Gorsuch said that a private-right-of-action has yet to be determined when the alleged discrimination is not intentional but an effect of the change in the law.”

In Brnovich v. Democratic National Committee, the Supreme Court ruled 6-3 in 2021 that two Arizona voting rule changes outlawing politically active groups from collecting mail ballots and banning out-of-precinct voting on Election Day, did not violate Section 2 of the Voting Rights Act.

In his concurrence, Gorsuch wrote, “I join the court’s opinion in full, but flag one thing it does not decide. Our cases have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under §2. Lower courts have treated this as an open question. 

"Because no party argues that the plaintiffs lack a cause of action here, and because the existence [or not] of a cause of action does not go to a court’s subject-matter jurisdiction, this court need not and does not address that issue today,” he added.

The American Civil Liberties Union has appealed the case on behalf of the NAACP and the Arkansas Public Policy Panel. Snead said he would be “very surprised” if the Department of Justice does not become involved in the case on appeal.