The Arkansas State Conference of the NAACP challenged the state legislative map drawn by the Arkansas Board of Apportionment. The challenge was brought under Section 2 of the Voting Rights Act 52 USC 10301. It provides
A violation . . . is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [protected] class of citizens . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
The map dilutes Black voters strength and therefore violated the law, alleged the plaintiffs in Arkansas NAACP v. Arkansas Board of Appportionment. But Lee Rudovsky a federal District Judge dismissed the case, relying on the Supreme Court's decision in Merrill v. Miller restoring the Alabama Congressional map which had been rejected by a three judge District Court. Justice Brett Kavanaugh, concurring, relied on the so-called Purcell principle to mandate courts to step aside from election cases as election days grow near.
But more dramatically the Judge - despite fifty years of litigation to the contrary - held that only the United States Attorney General can bring a Section 2 challenge. Private litigants are barred, said the 43 year old Rudovsky, a 2019 appointee to the federal bench. A longtime member of the Federalist Society he was nominated on the recommendation of Senator Tom Cotton (R- AR). His ruling, if upheld would wreak havoc on voting rights litigation, if the Merrill decision has not already done so. The decennial census mandates redistricting. All such challenges are perilously close to the following Congressional midterm elections. The Supreme Court's embrace of the "Purcell principle" jeopardizes all election-year litigation.
- GWC
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