Trump Judge Argues Voters Can't Sue States Over Voting Rights
On Monday, Judge Lisa Branch, a Donald Trump appointee to the 11th Circuit, penned a startling dissent launching a novel attack against the Voting Rights Act. The power of the Voting Rights Act hinges on individual voters’ ability to raise the alarm over racially discriminatory election laws. Voters do this by suing the state or locality that is disenfranchising them. But Branch argued that voters cannot sue states to enforce the VRA. Branch’s opinion is, for now, just a dissent. But there is a real possibility that the Supreme Court could transform it into the law of the land and render the landmark civil rights statute toothless.
The VRA describes two kinds of parties who can sue to enforce its guarantees: the attorney general of the United States, and “an aggrieved person.” Congress added the “aggrieved person” language in 1975 to clarify that private parties could file suit under Section 2 of the VRA, which bars any law that would “deny or abridge” the right to vote on account of race. Since then, the vast majority of VRA lawsuits under Section 2 have been brought by citizens, not the attorney general. The attorney general has filed just four of the 61 enforcement actions under Section 2 since 2013. Trump’s Department of Justice has brought no VRA lawsuits at all.
As a general rule, citizens can’t bring lawsuits against their state in federal court, a principle known as sovereign immunity. But Congress can limit states’ sovereign immunity when it wants to enforce constitutional protections. Congress need only be “unmistakably clear” in its intentions to do so. In NAACP v. Alabama, the state, which has enacted some of the country’s most egregious voter suppression laws, argued that the VRA did not explicitly curb states’ sovereign immunity. Thus, Alabama claims that it, along with every other state, is immune from VRA suits.
Two federal courts of appeals have already rejected this claim, and on Monday an 11th Circuit panel joined them. The majority was composed of Judges Charles R. Wilson, a liberal, and Roger Vinson, a conservative most famous for declaring the entire Affordable Care Act unconstitutional. This unlikely duo made quick work of Alabama’s argument: The VRA, it noted, “clearly expresses an intent to allow private parties to sue the States.” These provisions impose “direct liability on States for discrimination in voting” while “explicitly” and “specifically” permitting “private parties to address violations under the statute.”
https://slate.com/news-and-politics/2020/02/trump-judge-voters-sue-voting-rights-act.html
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