Federal Court Moves to Drastically Weaken Voting Rights Act
The ruling, which is almost certain to be appealed to the Supreme Court, would effectively bar private citizens and civil rights groups from suing under a key provision of the landmark law.
November 20, 2023
New York Times
A federal appeals court moved on Monday to drastically weaken the Voting Rights Act, issuing a ruling that would effectively bar private citizens and civil rights groups from filing lawsuits under a central provision of the landmark civil rights law.
The ruling, made by the U.S. Court of Appeals for the Eighth Circuit, found that only the federal government could bring a legal challenge under Section 2 of the Voting Rights Act, a crucial part of the law that prohibits election or voting practices that discriminate against Americans based on race.
The opinion is almost certain to be appealed to the Supreme Court. The court’s current conservative majority has issued several key decisions in recent years that have weakened the Voting Rights Act. But the justices have upheld the law in other instances, including in a June ruling that found Alabama had drawn a racially discriminatory congressional map.
Passed in 1965, the Voting Rights Act was one of the most significant achievements of the civil rights movement, undoing decades of discriminatory Jim Crow laws and protecting against egregious racial gerrymanders. But the law has been under legal assault almost since its inception, and court decisions through the years have hollowed out key provisions, including a requirement that states with a history of discrimination in voting obtain approval from the federal government before changing their voting laws.
The Monday decision by the court of appeals, which centered on a case in Arkansas, found that the text of the Voting Rights Act did not explicitly contain language for “a private right of action,” or the right of private citizens to file lawsuits under the law. Therefore, the court found, the right to sue would effectively lie with the government alone.
Politics Across the United States
- Louisiana’s Voting Map: A federal appeals court agreed with a lower-court ruling that Louisiana’s latest congressional map very likely violated the Voting Rights Act by diluting the power of Black voters, and ordered the state to finalize a new map by Jan. 15.
- Abortion on the Ballot: After voters in Ohio approved a measure to enshrine abortion rights in the State Constitution, could Florida be next?
- Nov. 7 Elections: Democrats won decisive victories in major races across the country as the political potency of abortion rights proved more powerful than the drag of President Biden’s approval ratings.
- The ‘Beetlejuice’ Incident: A scandal is haunting Lauren Boebert, the once-unrepentant G.O.P. congresswoman from Colorado. Some Republicans are getting behind a primary challenger.
Should the ruling stand, it would remove perhaps the most important facet of the Voting Rights Act; a majority of challenges to discriminatory laws and racial gerrymanders have come from private citizens and civil rights groups.
“It will be a devastating near-death blow to the Voting Rights Act if it remains the law,” said Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice. “Radical theories that would previously have been laughed out of court have been taken increasingly seriously by an increasingly radical judiciary.”
But Ms. Weiser said she “would be surprised if this decision stands,” based on decades of legal precedent and recent rulings by the Supreme Court.
Section 2 of the Voting Rights Act has been at the heart of many civil rights and voting rights decisions. The case in the Supreme Court’s ruling in June against Alabama’s map was brought by a number of civil rights organizations. In 2013, the section was also used to challenge a strict voter identification law passed in Texas.
Some conservative legal scholars heralded the Monday decision, saying it would prevent the Voting Rights Act from being used for political ends.
“Today’s decision is a win for Arkansas and for the rule of law,” said Jason Snead, the executive director of the Honest Elections Project, a conservative group. “The Voting Rights Act (V.R.A.) remains intact as a tool to prevent actual discrimination and disenfranchisement. But the V.R.A. is not, and was never intended to be, a partisan weapon against democratically enacted election integrity laws and redistricting practices.”
The current legal debate over who can bring Section 2 claims took a significant turn in February 2022, when Judge Lee P. Rudofsky, a district judge in eastern Arkansas appointed by former President Donald J. Trump, found that “only the attorney general of the United States may bring suit” to enforce Section 2.
The decision was appealed to the Eighth Circuit, which on Monday issued a 2-to-1 ruling largely agreeing with the previous decision and finding that the law did not explicitly provide for a “private right of action.”
“Did Congress give private plaintiffs the ability to sue under [Section] 2 of the Voting Rights Act?” Judge David R. Stras, an appointee of Mr. Trump, wrote. “Text and structure reveal that the answer is no.”
Proponents of the law and its use by private citizens point to statements made by Congress in 1982, when the Voting Rights Act was amended. In a report that accompanied the changes to the law, the House and Senate Judiciary Committees said that “it is intended that citizens have a private cause of action to enforce their rights under Section 2.”
The appeals court rejected that argument in its ruling, stating that the committees’ report “does not point to a single word or phrase in the Voting Rights Act in support of the conclusion that a private right of action has existed from the beginning.”
Section 2 of the Voting Rights Act has faced legal challenges before. In 2021, the Supreme Court found that Section 2 could be used to strike down voting restrictions only when they imposed substantial and disproportionate burdens on minority voters.
But the court left Section 2 intact, and it has remained a critical tool for civil rights groups, especially when challenging congressional and legislative district maps.
The battle over voting rights has entered a pitched new phase since the 2020 election. After Mr. Trump tried to overturn the outcome with a campaign casting doubt on the integrity of the country’s electoral infrastructure, Republican-led state legislatures across the country passed laws adding new restrictions to voting.
Sophia Lin Lakin, the director of the Voting Rights Project at the A.C.L.U., who argued the appeal on behalf of the challengers, called the Monday ruling a “travesty for democracy.”
“For generations, private individuals have brought cases under Section 2 of the Voting Rights Act to protect their right to vote,” she said in a statement. “By failing to reverse the district court’s radical decision, the Eighth Circuit has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for.”
ABOUT THE AUTHOR:
Nick Corasaniti is a Times reporter covering national politics, with a focus on voting and elections.
https://www.nytimes.com/2023/11/19/opinion/right-wing-antisemitism-populism.html
DEFEAT FASCISM BEFORE FASCISM DEFEATS YOU
November 19, 2023
New York Times
A dam burst last week on the right, and a wave of grotesque antisemitism poured out all over the internet.
In August, I wrote about the “lost boys” of the American right, many of them young and relatively unknown, who were outed for having secret or anonymous online profiles and using those profiles to spread raw bigotry, including antisemitism. Some of these people worked for the right wing’s biggest names, including Tucker Carlson, Ron DeSantis and Donald Trump.
What started in the shadows is now right in the open. It’s being advanced by some of the most powerful and influential people in America, and there is nothing subtle about it. The latest eruption started with a fight between the Daily Wire co-founder Ben Shapiro and his Daily Wire colleague Candace Owens. Both are immensely popular right-wing stars. Owens, for example, has more than four million followers on X, formerly known as Twitter, and more than five million on Instagram.
On Nov. 3, Owens posted on social media, “No government anywhere has a right to commit a genocide, ever. There is no justification for a genocide. I can’t believe this even needs to be said or is even considered the least bit controversial to state.” Many of her followers interpreted this as a criticism of Israel, and Shapiro, who staunchly supports Israel in its present conflict with Hamas, was later caught on tape at a private event saying Owens’s behavior during the war has been “disgraceful.”
Daily Wire drama should be of little interest to anyone outside The Daily Wire, but what happened next was truly alarming. First, Jason Whitlock, a leading personality at The Blaze, one of the largest right-wing websites, accused Shapiro of dual loyalties: “The guy has multiple loyalties. He loves America, but he loves Israel too. And maybe he loves Israel and he loves America too.” Owens, he said, “is a bit more America first. She only has one loyalty.”
Then Owens went on Carlson’s show on X, where he ranted against the “biggest donors at, say, Harvard,” asking where they were when members of the Harvard community “were calling for white genocide.”
“White genocide” is a term of art on the racist right and is linked to the so-called great replacement theory, the notion that leftists (including Jewish progressives) are trying to import people of color to replace America’s white majority. This is the theory that motivated the shooter in the Tree of Life synagogue massacre in Pittsburgh. It is false, evil and very dangerous.
The same day, an obscure far-right personality posted the same conspiracy theory on X: “Jewish communities have been pushing the exact kind of dialectical hatred against whites that they claim to want people to stop using against them.”
“I’m deeply disinterested,” he continued, “in giving the tiniest shit now about western Jewish populations coming to the disturbing realization that those hordes of minorities that support flooding their country don’t exactly like them too much.”
The post wouldn’t be notable, except as yet another example of the bigoted filth that dominates discourse on X, but Elon Musk — the world’s richest man and the owner of X — responded with an endorsement. “You have said the actual truth,” he replied.
Charlie Kirk, the founder of Turning Point USA, one of the largest right-wing youth organizations in the country, jumped in the next day to defend both the original post and Musk on “The Charlie Kirk Show.” While he hedged by saying that he doesn’t like to generalize, Kirk argued that “the first part” of the original post “is absolutely true.” He then reread the post and repeated the old Jews-and-money trope: “It is true that some of the largest financiers of left-wing anti-white causes have been Jewish Americans.”
While there are more examples of right-wing antisemitism spilling into the public square, I’m going to stop there. I by no means want to minimize the antisemitism we’ve seen from the far left, including on campuses and in the streets, but I am focusing on the people I just mentioned because they are some of the most prominent figures on the right.
What is going on? For the past several decades, the Republican Party has been a strong ally of Israel, so much so that the regard evangelical voters have for Israel has been the subject of considerable criticism. In my years as a Republican and a conservative lawyer, I never witnessed a trace of antisemitism. The answer to my question, however, is clear. The “new” American right isn’t that new at all. It has rejected Reaganism, yes, but in doing so, it’s reconnecting with older and darker forces on the right.
The ghost of Charles Lindbergh is haunting us. Lindbergh, readers may recall, was the hero aviator who flew solo across the Atlantic Ocean in 1927. He later grew to admire German fascism and gave a famous speech in September 1941 in which he accused Jews of attempting to push America into World War II.
“The three most important groups who have been pressing this country toward war,” he said, “are the British, the Jewish and the Roosevelt administration.” And while Lindbergh expressed sympathy for Jews facing Nazi persecution, he went straight to the same tropes that were deployed last week, claiming that the Jewish people’s “greatest danger to this country lies in their large ownership and influence in our motion pictures, our press, our radio and our government.”
More recently, we have seen the influence of Pat Buchanan, a former Richard Nixon speechwriter and so-called paleoconservative whom William F. Buckley Jr. denounced for his antisemitism in 1991. A central part of the case against Buchanan once again related to matters of war and peace. In the run-up to the first Iraq war, Buchanan said, “There are only two groups that are beating the drums for war in the Middle East — the Israeli Defense Ministry and its amen corner in the United States.” And that was a benign comment compared with many of his later pronouncements. In 2010 he wrote that if Elena Kagan were to be confirmed as a Supreme Court justice, “Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats. Is this Democrats’ idea of diversity?”
Buchanan is no minor figure. As Nicole Hemmer wrote in 2022, his presidential campaigns in the 1990s forecast the present moment in Republican politics. The party “traded Reaganism for Buchananism,” she contended. The evidence that she was correct grows by the day.
Everything about the New Right mind-set told us that this devolution was inevitable. It scorns character, decency and civility in the public square, often turning cruelty into a virtue. This was a necessary precondition for the entire enterprise. Decent people can be misguided, certainly, but they are not consumed with hate. Decent people do not indulge bigots.
The New Right rejects the norms and values of what it calls the uniparty or the cathedral: the center-left and center-right American elite. And one of those values is a steadfast opposition to racism and prejudice. The rejection first manifests itself in the form of just asking questions, then it veers into direct challenge of conventional norms, followed by a descent into true darkness.
Hostility unmoored from character quickly turns conspiratorial, and the world of conspiracy theories is where antisemites live and thrive. And finally, the term “America First,” popular with the New Right and the older, Lindbergh right, has always been misleading. It actually means some Americans first or “real” Americans first, and “real” Americans do not include the ideological or religious enemies of the New Right.
It is no coincidence, for example, that after the Owens-Shapiro confrontation, many New Right figures began posting “Christ is king,” an obvious shot at Shapiro’s Jewish beliefs.
Evolution is a concept that applies to biology, not human nature. It turns out that humanity does not grow out of the darkness of the past. It has to be contested by every generation. We are neither imprisoned by darkness nor ever fully captured by light.
America is no exception. From before the founding, our so-called new world has been plagued by all the sins of the old. Set against that human depravity, however, are the great aspirations of the founding, including the central declaration that “all men are created equal.”
American progress was never inevitable. It took immense courage to move haltingly to the more just, more fair country we live in today. We can’t presume that progress is permanent. It never is. No one is more aware of that than America’s most marginalized and vulnerable communities. They feel the effects very keenly when we take steps backward, when our commitment to our principles falters in the face of our own sin.
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Antisemitism’s March Into the Mainstream
Nov. 28, 2022
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