Voting Rights Law Faces More Setbacks With Conservative Judges

A federal appeals court’s rejection of a challenge by Black voters to a Georgia election system is the second blow to a key voting rights law in a week from judges appointed by Republican presidents.

A three-judge panel for the US Court of Appeals for Eleventh Circuit ruled Nov. 24 that the voters—who claimed Georgia’s system of electing public service commissioners in a statewide election diluted the state’s Black vote—hadn’t proposed a sufficient alternative to replace it with, blocking the judges from considering the case further.

Writing for the majority, Judge Elizabeth Branch, a Donald Trump appointee, said that while voters can challenge statewide election systems under the Voting Rights Act, they must propose a remedy “within the confines of the state’s chosen model of government” for those suits to move forward.

While the Eleventh Circuit ruling seems unlikely to have a major impact on other voting rights litigants, it does mark another hit to a part of the federal voting rights law that’s already been cut back largely by conservative judges.

The Eighth Circuit found on Nov. 20 that certain voting rights legal challenges can’t be levied by private citizens under Section 2 of the Voting Rights Act, the same law at issue in the Eleventh Circuit case. US Supreme Court Justices Neil Gorsuch and Clarence Thomas had seemed to invite such a ruling, although a majority of the justices affirmed a Section 2 challenge by private plaintiffs in last term’s case over Alabama’s congressional maps, Allen v. Milligan.

Ezra Rosenberg, co-director of the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law, said while the two federal appeals court rulings are “completely different decisions,” they both cut back on the remedies available in challenging violations of voting rights protections.

“I don’t think they’re related to each other other than the fact that it paints a larger picture of, not just chipping away, but—particularly in the context of the Eighth Circuit decision—a massive change of the law,” he said.

The Eighth Circuit decision in a redistricting case out of Arkansas would have a larger impact on the Voting Rights Act than the ruling from the Eleventh Circuit, which focuses on whether a statewide election for a commission dilutes the votes of minority voters, election law experts said. The panel ruling cites only nine other states “of varying regions and political majorities” that use statewide elections for boards or commissions.

The court limited its analysis to specific features of Georgia’s public service commission, said Jack Genberg, a senior staff attorney at the Southern Poverty Law Center.

“But the relative weight given to the state’s policy choices over remedying the dilution of Black voting strength is concerning,” he said.

Ruling ‘Mix’

The Eleventh Circuit decision reversed a ruling by Judge Steven D. Grimberg of the US District Court for the Northern District of Georgia, a Trump appointee, who concluded following a trial that the state’s statewide system for electing commissioners, who each represent different districts, illegally diluted the votes of Black residents.

The voters’ proposed change would see commissioners elected by those districts including one majority-minority region. The four remaining districts would be in white, rural areas.

That panel, which also included fellow Trump appointee Judge Britt Grant and US District Judge Harvey Schlesinger, tapped by George H.W. Bush, sitting by designation, said they “do not mean to suggest that Section 2 plaintiffs could never prevail when asserting a Section 2 vote dilution claim against a statewide body.”

The appellate panel didn’t reach the merits of the voters’ claims that the voting rights law was violated.

Derek Muller, a law professor at the University of Notre Dame who studies election law, said that federal appeals courts with a number of judges appointed by Trump and other Republicans, including the Eleventh and Eighth circuits, tend to have a more conservative approach to interpreting statutes.

The Eighth Circuit ruling was written by Trump appointee Judge David Stras and joined by Judge Raymond Gruender, a George W. Bush appointee. Chief Judge Lavenski Smith, also nominated by Bush, dissented.

Muller said that change in the judiciary’s composition is something that litigants also have to keep in mind as they pursue voting rights lawsuits.

“There’s more opportunities to win, certainly, but then there’s more opportunities to lose if you’re really aggressive,” Muller said.

Atiba Ellis, a Case Western Reserve University law professor, said the conservative legal movement has been challenging race conscious civil rights remedies, whether it be the Voting Rights Act or the affirmative action policies curbed by the Supreme Court last term.

“The political view that might be at play here creates a lot of interest against the Voting Rights Act as currently conceived, and I think a lot of that will influence the kind of litigation that gets brought,” Ellis said. “And given the sort of power base among conservative federal judges and particularly the extensive class of Trumpist federal judges right now—that will accelerate the diminution of the Voting Rights Act, if not set up its ultimate overturn.”

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, pushed back against the notion that conservative judges are uniformly attacking the Voting Rights Act.

He noted that two Supreme Court justices appointed by Republican presidents, Chief Justice John Roberts and Brett Kavanaugh, joined the liberal wing of the court to strike down the Republican-led redistricting plan in Alabama, and that a Georgia federal judge appointed by Barack Obama had ruled against former Democratic gubernatorial candidate Stacey Abrams’ voter suppression claims.

“I don’t think the evidence is there to say, ‘oh these decisions are just coming from conservative judges somehow,’ because you’re getting a mix of decisions from them,” von Spakovsky said.

The case is Rose v. Georgia, 11th Cir., No. 22-12593, 11/24/23