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A Supreme Court justice's paragraph could mean weaker protections for voters of color

JUANA SUMMERS, HOST:

The Voting Rights Act may soon be in danger again at the U.S. Supreme Court. A key section of that landmark law has for decades been mostly enforced through lawsuits by private individuals. But that long-standing practice may end, meaning weaker voter protections for people of color. NPR's Hansi Lo Wang reports.

HANSI LO WANG, BYLINE: Back in 2021, Supreme Court Justice Neil Gorsuch released a single paragraph. It was a concurring opinion for a major ruling in a lawsuit about Section 2 of the Voting Rights Act. And Gorsuch's one-paragraph opinion flagged a question he said no one in that lawsuit had raised about Section 2. Who has a right to sue?

DOUG SPENCER: Yellow and red flags went up immediately because I knew exactly what the signal was.

WANG: Doug Spencer is an associate law professor at the University of Colorado who tracks voting rights lawsuits. And Spencer says the signal he heard was that Gorsuch was interested in reviewing if private individuals and groups can sue under Section 2. There's now a case like that out of Arkansas that may be appealed to the Supreme Court soon. And Spencer says it's keeping him up at night.

SPENCER: The vast majority of lawsuits under the Voting Rights Act are brought by private litigants. And if that process is taken off the table, then the protection of minority voting rights will be much weaker after that case than it was before.

WANG: That Arkansas redistricting case was heard by a federal judge who was appointed by former President Donald Trump. And the judge said it's likely that at least some of the statehouse districts drawn by Republican politicians violate Section 2 protections for Black voters. But the judge cited Gorsuch's one-paragraph opinion and decided the case had to be thrown out. That's because, the judge said, the Voting Rights Act does not explicitly say private groups can bring Section 2 lawsuits. Dan Tokaji, dean of the University of Wisconsin Law School, says that literal interpretation of the law doesn't make sense.

DAN TOKAJI: The problem with that argument is that it conflicts with reality, including reality at the time that the Voting Rights Act was amended in 1982.

(SOUNDBITE OF ARCHIVED RECORDING)

RONALD REAGAN: Well, I am pleased today to sign the legislation extending the Voting Rights Act of 1965. Citizens...

WANG: Then-President Ronald Reagan signed those 1982 amendments at the White House, surrounded by a bipartisan group of lawmakers. Some of them were on the House and Senate committees that put out reports about the amendments. And both reports said that private individuals have the right to sue under Section 2. Here's Dan Tokaji again.

TOKAJI: Everyone - and I do mean everyone - understood that that's what Congress meant.

WANG: But the judge for the Arkansas lawsuit said only the head of the Justice Department can bring Section 2 cases. That's not how the department sees it, though.

PAM KARLAN: There are states, counties, school boards, water districts, city councils.

WANG: Pam Karlan is a former Justice Department official who stepped down from the Biden administration last year.

KARLAN: There are just so many different governmental bodies that are subject to Section 2 that the idea that you'd have one body in the Justice Department as the sole enforcement mechanism makes no sense at all.

WANG: What does makes sense to Michael Kang, a professor at Northwestern University Pritzker School of Law, is that this Arkansas case is coming as the Supreme Court's conservative majority continues to chip away at the Voting Rights Act. Kang says if private individuals are no longer allowed to sue under Section 2...

MICHAEL KANG: Republican governments that want to cut back minority voting opportunities, there'll be a new world of possibilities for them to take advantage of. It would be really hard to challenge a lot of what they might do.

WANG: For now, voting rights advocates are watching to see what the 8th Circuit Court of Appeals does first about this Arkansas case before it potentially makes its way to the Supreme Court.

Hansi Lo Wang, NPR News. Transcript provided by NPR, Copyright NPR.

Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.

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