Three novel legal arguments by Republicans that threaten the Voting Rights Act in 2024

“Conservative legal activist groups are trying out a variety of pretty radical claims that would have been beyond the pale 10, 15, 20 years ago,” says Jesse Rhodes, a political science professor at the University of Massachusetts Amherst who wrote “Ballot Blocked: The Political Erosion of the Voting Rights Act.” “But now that there’s this very conservative majority, they think, ‘Why not? Let’s give it a shot.’ And they’re hoping that some of these sets of claims will stick.”

One legal tack by Alabama Republicans, however, was rebuffed at the country’s highest court in 2023.

Going against decades of precedent, state officials argued in last year’s most high-profile case about Section 2 of the Voting Rights Act that race should not be taken into account when maps of voting districts are redrawn unless there’s evidence of intentional discrimination. But two of the high court’s conservatives — Chief Justice John Roberts and Justice Brett Kavanaugh — joined the three liberal justices in rejecting that argument, keeping in place the court’s past rulings on Section 2.

That section — which bans any standard, practice or procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” — is one of the key remaining parts of the law after a major Supreme Court decision in 2013, when Roberts led the court’s conservative majority in effectively dismantling requirements for certain states and counties with a history of racial discrimination to get “preclearance” approval from the federal government or courts before changing election rules.

Three additional legal arguments have emerged, however, that could put Section 2 protections at risk — and some of the Supreme Court’s conservative justices have already shown interest in these positions.

Arkansas Republicans argue private individuals and groups can’t sue

For decades, private individuals and groups have brought the majority of lawsuits seeking to enforce Section 2. And when Congress amended the Voting Rights Act in 1982, House and Senate committees put out reports saying there is what’s called in the legal world a “private right of action” under that section of the law.

But in an Arkansas redistricting lawsuit filed by civil rights groups representing Black voters, Republican state officials argued that the groups do not have a right to sue.

“And the only provision of the Act that speaks to Section 2 enforcement authorizes the Attorney General—and no one else—to sue to enforce Section 2,” they wrote in a court filing.

So far, a federal judge and a panel of the 8th U.S. Circuit Court of Appeals have agreed, pointing out that the text of the Voting Rights Act does not explicitly say there is a private right of action under Section 2.

Other courts, however, have found that there is a private right of action.

“It’s just astounding,” says Adrienne Jones, an assistant professor of political science at Morehouse College, who focuses on voting rights and notes that in 2021, Justice Neil Gorsuch put out a one-paragraph concurring opinion, joined by Justice Clarence Thomas, that raised the question of whether federal law allows private individuals and groups to sue under Section 2.

“It invites challenges. And here comes the challenge,” Jones adds. “We have a very conservative court that has had no issue with overturning precedents at an alarming rate. And so it is not unreasonable to think that the ability to sue for voter discrimination is about to become a real problem.”

More than a dozen Republican state attorneys general — from Alabama, Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Mississippi, Montana, Nebraska, South Carolina, Texas and West Virginia — have lined up in support of the argument against a private right of action with a friend-of-the-court brief.

Alabama Republicans argue Congress can no longer allow race-based redistricting

Though the Supreme Court rejected Alabama’s attempt to severely limit how race can be used when redrawing voting maps, the state’s Republican officials have signaled they’re gearing up for another challenge against race-based redistricting.

After finding that the maps drawn by Alabama’s Republican-controlled legislature likely violated Section 2 by diluting Black voters’ power, federal courts have redrawn the state’s congressional map for this year’s elections.

But for the 2026 elections, there’s an upcoming court trial over that congressional map. And in a recent court filing, GOP officials said they believe evidence gathering is needed on whether it’s still constitutional for Congress to allow redistricting based on race under Section 2.

That question came up in a concurring opinion that Kavanaugh wrote when the Supreme Court weighed in last year on Alabama’s congressional redistricting plans. The conservative justice referenced an argument by Thomas that under the Constitution, Congress cannot allow race-based redistricting to continue without time limits.

“But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time,” Kavanaugh said.

Louisiana and Georgia Republicans argue the end of race-based affirmative action means race-based redistricting should also end

In Louisiana, Republican state officials have been trying to make a similar argument about whether race-based redistricting should still be allowed.

Courts have found that the state’s GOP-controlled legislature approved a congressional map that likely diluted Black voters’ power, and a trial over the map that will be used for this year’s elections is set to start later this year.

But in many of their court filings so far for this case, Louisiana Republicans have repeatedly cited the Supreme Court’s ruling last year against race-based affirmative action in the case known as “Students for Fair Admissions v. President and Fellows of Harvard College.” They claim that just as federal courts have effectively put an end to race-conscious admissions programs at colleges and universities, they should also stop allowing political map drawing based on race.

The high court’s ruling “made clear that as statutes requiring race-based classification achieve their intended ends, they will necessarily become obsolete,” the Louisiana Republicans have argued in a court filing.

It’s an argument that has been echoed by GOP state officials in Alabama and Georgia, where there are also ongoing redistricting fights over the power of Black voters.

A panel of the 5th Circuit that heard Louisiana’s case, however, did not buy it.

“Drawing a comparison between voting redistricting and affirmative action occurring at Harvard is a tough analogy,” the panel said in their opinion.

Edited by Benjamin Swasey