As the nation thunders upon its first primaries of the 2022 election season, Democrats across the country are going into court trying to convince tame, bent, and otherwise stump-broke judges to give them by judicial fiat what they could not attain by winning elections. One of those cases took place in Arkansas. Instead of involving House seats, it involved the apportionment of the Arkansas House of Representatives (76R, 24D) and Senate (27R, 7D, 1I). Despite the state-level focus of the case, it, in my opinion, gives us a hint of where the Supreme Court is heading in curbing judicial meddling in redistricting and elections.
When the state redistricting board submitted its proposal for the Arkansas legislature, it proposed 11 majority-Black House seats and four majority-Black Senate seats. The NAACP and the Arkansas Public Policy Panel sued, claiming that the new map diluted black voter impact and the correct number of majority-Black seats was 16 in the House and nine in the Senate.
This is where the story gets interesting. Historically, federal courts have allowed private organizations to sue under Section 2 of the Voting Rights Act. When Trump appointee District Judge Lee Rudofsky (Harvard Law School graduate, Federalist Society member, and former Arkansas solicitor general) got the case, he ruled that there was no provision for private organizations to challenge voting districts. His ruling stated that the Department of Justice had to be a party to any Voting Rights Act lawsuit. He gave the Department of Justice five days to join the case. When DOJ demurred, Judge Rudofsky dismissed the case.
The ACLU has appealed to the US Supreme Court, but I think the odds of that action being successful are minimal for reasons I'll hit in a second.
In a recent case, Alabama's redistricting plan was challenged under the pretense of it diluting the Black vote. It was one of those lawsuits that were filed late, with the seeming intent of imposing an alternative plan on Alabama and leaving the state in the position of accepting the alternative or face chaos administering an election where, among other things, incumbents might suddenly find themselves living in a district with another incumbent.
The state appealed to the Supreme Court; see Alabama Appeals the Rejection of Its Redistricting Map and the Left May Get More Than It Wanted or Expected (yes, I know the image is North Carolina, not Alabama). Rather than wrestle with the intricacies of racial gerrymandering, the Supreme Court ruled by 6-3 that it was too late for courts to muck about in redistricting. The Supreme Court will hear the Alabama case next term, but what is notable is that Alabama did not challenge based on the lack of time; Alabama head-on challenged the legality of drawing voting districts based on some sort of racial spoils system.
If you read Judge Rudofsky's opinion, you'll see that one of the issues facing him was that a map had to be established by March 1 for the state to adequately prepare for primary elections. I suspect that the Supreme Court will refuse to intervene for the same reason, see Why We Shouldn't Fear Chief Justice John Roberts as More Clouds Loom Over the Future of Racial Gerrymanders and the Voting Rights Act).
That said, this case might resurface in the future, as the Supreme Court appears to be set to refine how the Voting Rights Act can be used. In the past few years, the Supreme Court has transformed the Voting Rights Act from an un-Constitutional means of mass punishment and imposing collective guilt to something that is merely offensive to the Constitutional right of states to set “time, place, and manner” of elections and a tool for the left to interject chaos and ad hoc rules in defiance of state law. There is a very good chance that five justices will drag Chief Justice John Roberts to outlaw the use of race in setting voting district boundaries.