December 4, 2023 — The Dallas Morning News published an op-ed in the Opinion section Monday by partner William A. Brewer III about a new court decision that poses a threat to the Voting Rights Act. The opinion piece, “A dangerous precedent for the Voting Rights Act,” reflects the Brewer Storefront’s continued dedication to enforcing and upholding the Voting Rights Act in Texas communities. The Storefront is the firm’s community-service legal affiliate.
The commentary follows:
Just months after the U.S. Supreme Court upheld Section 2 of the Voting Rights Act, which safeguards against voting schemes that demonstrably dilute the votes of minorities, the law is again under attack.
Recently, a three-judge 8th Circuit Court of Appeals panel ruled 2-1 in a redistricting case filed in Arkansas, that only the federal government can bring a Section 2 voting rights challenge, thereby denying individuals and civil rights groups the right to file lawsuits challenging discriminatory election systems.
The lawsuit brought by the Arkansas State Conference NAACP and others alleges that a proposed redistricting map for the Arkansas House of Representatives denies Black voters an equal opportunity to elect candidates of their choice.
The decision is binding in seven states. The risk is obvious. North Dakota, one of the states covered by the decision, intends to appeal a recent federal judge’s ruling that protected Native American voting rights in the state after tribes and tribal members sued last year seeking a joint majority Native American state House district. State leaders are already seeking to leverage their self-interests over that of Native voters.
The 8th Circuit decision, if affirmed by the Supreme Court, could potentially lead to voters of color across the country being denied any ability to challenge voting systems that overtly deny fair representation.
Section 2 of the Voting Rights Act prohibits voting practices that discriminate based on race, color or membership in a language minority group. Since its passage in 1965, most Section 2 cases concern voters of color filing lawsuits that challenge at-large election systems, arguing that they deny voters of color a fair opportunity to elect candidates of their choosing. By an overwhelming margin, private plaintiffs (individual voters and groups), not the government, bring most Section 2 cases.
The 8th Circuit panel ruling in Arkansas State Conference NAACP vs. Arkansas Board of Apportionment reflects bad jurisprudence and poor historical research. Even worse, it is a potentially damaging outcome for the nation. Since 1965, the Voting Right Act has served as an important tool to protect the votes of those excluded from power by voting systems that deliver power to the few — and keep it from the many.
The Voting Rights Act is particularly relevant in Texas, where the population continues to diversify while, at the same time, elected bodies such as school boards and city councils employ voting schemes that frustrate outcomes that mirror the state’s demographics. Census figures reveal this year that Hispanics make up the largest share of the population in Texas, and yet this reality is not reflected among the political leadership on local and statewide elected bodies.
If this decision stands, it will leave only the U.S. Department of Justice and U.S. Attorney General empowered to bring cases, denying eligible voters the right to challenge their local election systems in court. We know that private lawsuits brought by citizens whose community employs inequitable voting schemes have compelled positive change.
In his dissent in the Arkansas ruling, 8th Circuit Chief Judge Lavenski Smith writes, “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.” Smith is a 2002 George W. Bush appointee, and is African American.
He added that the private plaintiff issue is best left to the Supreme Court.
Importantly, in June 2023, the Supreme Court upheld Section 2 of the Voting Rights Act in a 5-4 vote in Allen vs. Milligan, which was brought by private plaintiffs to protect Black voters.
Our firm is familiar with the importance of the private right of action. Our community service legal affiliate, the Brewer Storefront, has brought numerous voting rights cases in Texas challenging at-large election systems on behalf of Hispanic, Black, Asian and white plaintiffs.
The successful cases have resulted in revamped election systems, often by way of the creation of geographically drawn single-member district seats that include the creation of minority “opportunity” district seats where minority voters make up a majority.
Most importantly, these cases have created a pathway of opportunity: They have resulted in greater representation of minority voters and the election of minority candidates across North Texas.
For example, a Richardson Independent School District voting rights case brought by Brewer Storefront resolved in 2019 resulted in a previously all-white school board becoming majority-minority, better reflecting the majority-minority students the school district educates.
David Tyson, plaintiff in the Richardson ISD case, is a former RISD board member and the first Black American to ever serve on the board. He bravely stepped forward to sue. Tyson was honored this year by the Texas Legislature for his contributions to Richardson, following his voting rights achievement.
Yet, if this 8th Circuit ruling prevails, Tyson’s voice would have been silenced. The inequities of the voting system he challenged would remain today, to the detriment of schools, students and the broader community.
Removing the right of private individuals and organizations to sue under the Voting Rights Act would undermine the civil rights of voters not only in Texas, but nationally. Voting rights are central to civil rights in our democracy. We should fight to protect them at all costs.