Guest: ACLU attorney Jonathan Topaz; Also: IA, NY GOPers charged with mass vote fraud; OH Guv signs bill restricting voting rights...
By Brad Friedman on 1/13/2023, 6:17pm PT  

What a way to "celebrate" Martin Luther King Day this year on The BradCast. Fifty-eight years since the passage of the Voting Rights Act and 10 years since the rightwingers on the U.S. Supreme Court gutted one of its central provisions, our even farther rightwing courts now appear to be gunning for much of the rest of the landmark civil rights voting law. [Audio link to full show is posted below this summary.]

First up today, while GOP-appointed federal judges are finding new ways to allow racial discrimination at the voting booth, Republicans --- including a top election official in upstate New York, and the wife of a U.S. House candidate in Iowa --- are nabbed by the Justice Department for committing mass vote fraud with absentee ballots.

The DoJ announcements in those cases come after a year in which Republicans filed a record number of anti-voting lawsuits --- in hopes of preventing (certain) voters from voting and/or having their votes counted as cast --- under the pretend guise of fighting fraud. They also come just days after Ohio's supposedly "moderate" GOP Governor signed new legislation to make it more difficult for (certain) voters to vote at all in upcoming elections.

Voting rights advocates in the Buckeye State charge the new measure will create barriers to the ballot for the elderly, rural voters and members of the military. But if it makes it more difficult for minority voters to vote, it may soon be impossible for groups like the League of Women Voters or the NAACP or the ACLU to file lawsuits charging violations of anti-discrimination laws under the Voting Rights Act.

When SCOTUS gutted Section 5 of the VRA in 2013 --- the part that required new election laws in jurisdictions with a history of racial discrimination at the polling place to be precleared by federal authorities before they could go into effect --- the rightwing majority on the High Court claimed the provision was antiquated and no longer necessary. Besides, even though thousands of discriminatory laws had been blocked by Section 5 since 1965, there was always Section 2, which blocks racially discriminatory voting laws in all 50 states.

After all, as an ACLU attorney was forced to point out during a federal appeals court hearing this week: “For over 40 years, dozens of federal courts have heard hundreds of Section 2 claims brought by federal plaintiffs.”

Unfortunately, that lawyer was defending the use of Section 2 before a three-judge panel, where she had to add that, “In that time, not one court denied the plaintiffs their day in court because of a lack of private action.”

The hearing in question came this week after a lower, federal district Court judge in Arkansas tossed out a challenge to a new state House district map implemented by state Republicans. The map includes 11 black majority districts, when the population of the state suggests there should be 16 such districts.

But Judge Lee Rudofsky, a Donald Trump appointee, dismissed the challenge to the new map, declaring that Section 2 of the VRA does not allow private individuals and groups, like the ACLU or NAACP, to file suit against such laws. Only the U.S. Attorney General may do so, he held.

As our guest explains today, Rudofsky's court "the first court in the history of the country to find that there is no private right of action" in Section 2. For a host of reasons, it's an absurd argument. And yet, this week at the U.S. 8th Circuit Court of Appeals, according to CNN, two of the three judges on the appeals panel (all of them are Republican appointees) appeared open to the idea that there is no right to private action under Section 2, because the federal statute doesn't specifically say as much. Never mind that private parties have been suing for decades under Section 2, including at the U.S. Supreme Court, where the Justices never said a word against it.

We're joined to explain this newly-attempted GOP voter suppression nightmare by JONATHAN TOPAZ, the ACLU Voting Rights Project staff attorney who served as the trial attorney on the initial case that was tossed by Judge Rudofsky last year.

"I think it's hard for most people to fathom that this is a question that needs to be litigated in 2023," Topaz tells me. "There have been hundreds of cases over the course of Section 2's history litigated by private plaintiffs, and many of those cases --- at least 10 at the Supreme Court, and at least 18 in the 8th Circuit where we were arguing earlier this week --- were brought by private plaintiffs."

"Congress had opportunities --- in 1982 when they amended the Voting Rights Act, as recently as 2006 when they reauthorized the Voting Rights Act --- to correct any mistakes it saw out there as private plaintiffs brought cases across the country, which would have been purportedly in open defiance of what Congress had intended, and Congress never saw fit to correct anyone," he explains.

Topaz goes on to cite a case as recently as 1996 when "five justices of the Supreme Court --- so, a majority --- held that there was a private right of action under Section 2 of the Voting Rights Act." Of course, our newly corrupted, stolen, and extremist rightwing majority on the High Court has had no trouble of late reversing its own precedents whenever they feel like it. So this case, which will almost certainly end up at SCOTUS no matter what happens at the 8th Circuit, could tee up a potentially near-fatal blow to the already teetering VRA.

"Section 2 is one of the crown jewels of American legislative history," Topaz argues today. "It's one of the finest statutes ever passed. Section 2 is absolutely essential in terms of ensuring equal voting access around the country. And we will do everything we can do defend it."

In the meantime, as he observes, this particular fight has prevented the courts from deciding on the merits of the original case, which means that --- even if it's ultimately settled at SCOTUS in favor of the ACLU --- "there will have been several elections taking place with discriminatory maps in Arkansas."

In 1957, in his "Give us the Ballot" speech eight years before passage of the VRA, MLK reportedly said: "So long as I do not firmly and irrevocably possess the right to vote I do not possess myself. I cannot make up my mind --- it is made up for me. I cannot live as a democratic citizen, observing the laws I have helped to enact --- I can only submit to the edict of others."

Happy Martin Luther King Day. It's on Monday.

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