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Obscure legal theory could weaken voters’ protections from racist laws
A federal court has embraced a novel legal theory that seriously threatens one of the last legs of the Voting Rights Act of 1965.
At the heart of the dispute is who has the right to bring a case under the law, a crown jewel of the civil rights movement that has worked to prevent voting discrimination against minorities. For more than half a century, the Department of Justice as well as private plaintiffs â anyone from an individual voter to a civic action group â have filed cases under section 2 of the law, which prohibits any voting practice or procedure that discriminates on the basis of race.
The case that could upend the law started out as a typical voting rights lawsuit. In late 2021, the Arkansas NAACP and the Arkansas Public Policy Panel sued the state, arguing that the new Arkansas house of representatives districts illegally discriminated against Black Arkansans by packing the Black vote into a disproportionately small number of districts.
But in a surprise ruling in 2022, a federal judge ruled that only the federal government, not private plaintiffs can file lawsuits under section 2. The US court of appeals for the eighth circuit has since upheld that ruling. The issue is likely to be ultimately resolved by the US supreme court.
Voting rights lawyers say the rulings are âradical and unprecedentedâ. For decades, the vast majority of cases under section 2 have been filed by private plaintiffs, not the government. Only allowing the government to bring section 2 cases would bring enforcement of the Voting Rights Act to a halt.
âPrivate plaintiffs bringing cases under section two has been one of the hallmark ways to protect voting rights in this country,â said Jonathan Topaz, a staff attorney for the ACLU Voting Rights Project. âIf private plaintiffs are unable to bring suit and vindicate their rights under section 2, then in our estimation, there will be large swaths of violations of section 2 that will go unremedied.â
Blocking non-government groups from filing suit under the VRA would be especially damaging after the supreme courtâs 2013 ruling gutting a different provision in the law that required states with a history of voting discrimination to pre-clear any election changes with the Department of Justice before they went into effect. While private parties have long played a key role in enforcing section 2, getting rid of the pre-clearance provision has only escalated pressure on them to step up and essentially play Whac-A-Mole to identify voting discrimination.
Section 2 cases are often among the most complicated voting cases litigators can bring, but are powerful tools to fight racial discrimination. The provision can be used to challenge a wide range of practices â from the shape of a congressional district to the way in which members of a school board or city council are elected.
Proving a section 2 violation also requires what the supreme court has called âan intensely local appraisalâ of the electoral mechanism in question. Doing so requires hiring experts who can do complex analyses of voting patterns and demographic data to see if a violation exists. Private groups are often better positioned to identify section 2 cases at the local level that can fly below the radar of the justice department. They can also move faster to undertake analyses and allocate resources without the bureaucratic hurdles of a vast federal agency like the Department of Justice.
âThe limited federal resources available for Voting Rights Act enforcement reinforce the need for a private cause of action,â the Department of Justice wrote in an amicus brief explaining how it relies on private parties to enforce the law. âAs the Supreme Court has noted, â[t]he Attorney General has a limited staffâ who may not always be able âto uncover quickly new regulations and enactments passed at the varying levels of state government.ââ
According to Sophia Lin Lakin, the director of the ACLUâs voting rights project, getting rid of the ability of private parties to sue could grind enforcement of the Voting Rights Act to âall but a dribble of movementâ.
âThe reason you didnât see attacks on this issue is, because aside from some random people kind of musing about it, no one thought Congress did anything other than give private parties the ability to sue,â she said.
The issue at the heart of the Arkansas case seemed to emerge out of nowhere.
Its genesis appears to have been a 125-word concurring opinion authored by Neil Gorsuch in a 2021 Arizona case that made it harder to challenge discriminatory voting laws.
âOur cases have assumed â without deciding â that the Voting Rights Act of 1965 furnishes an implied cause of action under §2,â Gorsuch wrote in the opinion, which was only joined by fellow conservative Clarence Thomas. âLower courts have treated this as an open question ⦠Because no party argues that the plaintiffs lack a cause of action here, and because the existence (or not) of a cause of action does not go to a courtâs subject-matter jurisdiction ⦠this Court need not and does not address that issue today.â
It was a clear invitation to lower court plaintiffs to bring a case challenging whether or not private plaintiffs can file section 2 litigation.
Less than six months later, Lee Rudofsky, a Trump-appointed US district judge who was overseeing the Arkansas case, took an interest in Gorsuchâs opinion. Even though neither the plaintiffs in the case nor Arkansas officials had raised an issue over whether private plaintiffs could sue, he pointed to Gorsuchâs opinion and asked for briefing on it.
A little over a month later, he dismissed the case, saying that no private right of action existed. Despite the NAACP having a strong case, Rudofsky wrote in his decision, â[T]he Court has concluded that this case may be brought only by the Attorney General of the United States.â
The ruling is part of a suite of attacks in recent years aiming to chip away at section 2, said Daniel Tokaji, an election law expert who is dean of the law school at the University of Wisconsin. âThese are judges who are not terribly friendly to the voting rights and in particular to protections that racial minority groups have long had to wait for,â he said.
âJudges have made it more and more difficult for people whose voting rights have been violated, not just to succeed on that point, but even to get into court in the first place.â
While voting rights lawyers are alarmed by the eighth circuitâs decision to uphold the Arkansas ruling, they are quick to note that other jurists outside of the appellate circuit have yet to sign on. Since Rudofskyâs decision in the Arkansas case, litigants in Georgia, Florida, North Dakota, Texas, Wisconsin, Virginia, Colorado and Kansas have all made arguments in voting cases that no private right of action exists under section 2, according to Derek Zeigler, student attorney at the University of Michigan civil rights litigation initiative.
No other court so far has agreed.
Even if the supreme court were to ultimately gut the private right of action under section 2, election lawyers believe that another provision in federal law may allow private plaintiffs to bring private claims under Section 2. That provision, 42 USC 1983, authorizes any person to sue if rights protected by the constitution or federal statute have been violated.
Topaz, the ACLU voting rights lawyer, said voters of color would bear the burden of court rulings eliminating a private right of action.
âIt is a terrible shame for Black Arkansans, whose political influence and political power continues to be diluted.â
News
Senate Adopts GOP Budget, Laying the Groundwork to Fund ICE and Reopen DHS
The Senate early Thursday morning adopted a Republican budget blueprint that would pave the way for a $70 billion increase for immigration enforcement and the eventual reopening of the Department of Homeland Security.
Republicans pushed through the plan on a nearly party-line vote of 50 to 48. It came after an overnight marathon of rapid-fire votes, known as a vote-a-rama, in which the G.O.P. beat back a series of Democratic proposals aimed at addressing the high cost of health care, housing, food and energy. The debate put the two parties’ dueling messages on vivid display six months before the midterm elections.
Republicans, who are using the budget plan to lay the groundwork to eventually push through a filibuster-proof bill providing a multiyear funding stream for President Trump’s immigration crackdown, used the all-night session to highlight their hard-line stance on border security, seeking to portray Democrats as unwilling to safeguard the country.
Democrats tried and failed to add a series of changes aimed at addressing cost-of-living issues, seizing the opportunity to hammer Republicans as out of touch with and unwilling to act on the concerns of everyday Americans.
Here’s what to know about the budget plan and the nocturnal ritual senators engaged in before adopting it.
Republicans are seeking a way around a filibuster on D.H.S. funding.
The budget blueprint is a crucial piece of Republicans’ plan to fund the Department of Homeland Security and end a shutdown that has lasted for more than two months. After Democrats refused to fund immigration enforcement without new restrictions on agents’ tactics and conduct, the G.O.P. struck a deal with them to pass a spending bill that would fund everything but ICE and the Border Patrol. Republicans said they would fund those agencies through a special budget bill that Democrats could not block.
“We can fix this with Republican votes, and we will,” said Senator Lindsey Graham, Republican of South Carolina and the Budget Committee chairman. “Every Democrat has opposed money for the Border Patrol and ICE at a time of great peril.”
In resorting to a new budget blueprint, Republicans laid the groundwork to deny Democrats a chance to stop the immigration enforcement funding. But they also submitted themselves to a vote-a-rama, in which any senator can propose unlimited changes to such a measure before it is adopted.
The budget measure now goes to the House, which must adopt it before lawmakers in both chambers can draft the legislation funding immigration enforcement. That bill will provide yet another opportunity for a vote-a-rama even closer to the November election.
Democrats used the moment to hammer Republicans on affordability.
Democrats took to the floor to criticize Republicans for supercharging funding for federal immigration enforcement rather than moving legislation that would address Americans’ concerns over affordability.
“This is what Republicans are fighting for,” said Senator Chuck Schumer, Democrat of New York and the Democratic leader. “To maintain two unchecked rogue agencies that are dreaded in all corners of this country instead of reducing your health care costs, your housing costs, your grocery costs, your gas costs.”
Democrats offered a host of amendments along those lines, all of which were defeated by Republicans — and that was the point. The proposals were meant to put the G.O.P. in a tough political spot, showcasing their opposition to helping Americans afford high living costs. Fewer than a handful of G.O.P. senators crossed party lines to support them.
Republicans blocked Democrats’ proposals to address high living costs.
The G.O.P. thwarted an effort by Mr. Schumer to require that the budget measure lower out-of-pocket health care costs for Americans. Two Republicans who are up for re-election this year, Senators Susan Collins of Maine and Dan Sullivan of Alaska, voted with Democrats, but the proposal was still defeated.
Republicans also squelched a move by Senator Ben Ray Lujan, Democrat of New Mexico, to create a fund that would lower grocery costs and reverse cuts to food aid programs that Republicans enacted last year. Ms. Collins and Mr. Sullivan again joined Democrats.
Also defeated by the G.O.P.: a proposal by Senator John Hickenlooper, Democrat of Colorado, to address rising consumer prices brought on by Mr. Trump’s tariffs and the war in Iran; one by Senator Edward J. Markey, Democrat of Massachusetts, to require the budget measure to address rising electricity prices, and another by Mr. Markey to create a fund to bring down housing costs.
Senator Jon Ossoff, a Democrat who is up for re-election in Georgia, also sought to add language requiring the budget plan to address health insurance companies denying or delaying access to care, but that, too was blocked by Republicans.
Republicans sought to amplify their hard-line messages on immigration, voter I.D. and transgender care.
While Republicans had fewer proposals for changes to their own budget plan, they also sought to offer measures that would underscore their aggressive stance on immigration enforcement and dare Democrats to vote against them.
Mr. Graham offered an amendment to allocate funds toward a deficit-neutral reserve fund relating to the apprehension and deportation of adult immigrants convicted of rape, murder, or sexual abuse of a minor after illegally entering the United States. It passed unanimously.
Senator Josh Hawley, Republican of Missouri, sought to bar Medicaid payments to Planned Parenthood, which provides abortion and other services, and criticized the organization for providing transgender care to minors. Senator John Kennedy, Republican of Louisiana, also attempted to tack on the G.O.P. voter identification bill, known as the SAVE America Act. Both proposals were blocked when Democrats, joined by a few Republicans, voted to strike them as unrelated to the budget plan.
The Republicans who crossed party lines to oppose their own party’s proposals for new voting requirements were Ms. Collins along with Senators Mitch McConnell of Kentucky, Lisa Murkowski of Alaska and Thom Tillis of North Carolina.
Ms. Collins and Ms. Murkowski also opposed the effort to block payments to Planned Parenthood.
News
Who is John Phelan, the US Navy Secretary fired by Pete Hegseth?
The firing of US Navy Secretary John Phelan is the latest in a shakeup of the American military during the war on Iran, now in its eighth week.
The Pentagon said Phelan would leave office immediately.
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“On behalf of the Secretary of War and Deputy Secretary of War, we are grateful to Secretary Phelan for his service to the Department and the United States Navy,” said chief Pentagon spokesperson Sean Parnell. “We wish him well in his future endeavours”.
His firing comes at a critical moment, with US naval forces enforcing a blockade on Iranian ports and ships, and maintaining a heavy presence around the Strait of Hormuz, through which 20 percent of the world’s oil and gas passes during peacetime.
Although the Pentagon gave no official reason for the dismissal, reports indicate the decision was linked to internal disputes, including tensions with Defense Secretary Pete Hegseth.
Phelan’s removal is part of a broader pattern of dismissals and restructuring within the US military under President Donald Trump’s administration – including during the current war.
So, who is John Phelan, and what impact could his firing have on US military strategy?
Who is John Phelan?
As the US Navy’s top civilian official, Phelan had various responsibilities, including overseeing recruiting, mobilising and organising, as well as construction and repair of ships and military equipment.
He was appointed in 2024 as a political ally of Trump, despite having no prior military or defence leadership experience.
Before entering government, Phelan was a businessman and investment executive, as well as a major Republican donor and fundraiser — a background that is fairly common among Trump appointees and advisers. The US president’s two top diplomatic negotiators, for instance, are Steve Witkoff — a real estate businessman with no prior diplomatic experience – and Trump’s son-in-law, Jared Kushner.
According to the Reuters news agency, Phelan’s tenure quickly became controversial. He faced criticism for moving too slowly on shipbuilding reforms and for strained relationships with key Pentagon figures, including Hegseth and his deputy, Steve Feinberg.
In addition, Phelan was reportedly under an ethics investigation, which may have weakened his standing in the administration.
Navy Undersecretary Hung Cao, who was also reported to have a difficult relationship with Phelan, has become acting secretary. Fifty-four-year-old Cao is a 25-year Navy veteran who previously ran as a Republican candidate for the US Senate and House of Representatives in 2022 and 2024 respectively, but was unsuccessful on both occasions.
Democrats have criticised Phelan’s removal, calling it “troubling”.
“I am concerned it is yet another example of the instability and dysfunction that have come to define the Department of Defense under President Trump and Secretary Hegseth,” said Senator Jack Reed, the top Democrat on the Senate Armed Services Committee.
Who else has the Trump administration fired since the war with Iran began?
Phelan’s removal is the latest in a series of senior military leaders being fired or are leaving during the US-Israeli war on Iran, in addition to others since Trump was re-elected.
Among the most notable dismissals was Army Chief of Staff General Randy A. George, in the first week of April. George was appointed in 2023 under former US President Joe Biden.
According to reports, Hegseth also fired the head of the Army’s Transformation and Training Command, a unit concerned with modernising the army, and the Army’s chief of chaplains. The Pentagon has not confirmed their dismissal.
Why is Phelan’s dismissal significant?
The 62-year-old’s removal comes during a fragile ceasefire with Iran, as the US continues to move more naval assets into the region.
The Navy is central to enforcing Trump’s blockade of Iranian ports to restrict Iran’s oil exports and apply economic pressure on Tehran, as the US president looks eager to wrap up the war, which is deeply unpopular to many Americans.
However, there are no indications that Trump is willing to end the blockade or other naval operations in the Strait of Hormuz, as negotiations between Washington and Tehran have come to a standstill.
Tensions have escalated in recent days after the US military seized an Iranian container ship. The US claimed it was attempting to sail from the Arabian Sea through the Strait of Hormuz to the Iranian port of Bandar Abbas.
Tehran responded by describing the attack and hijack as an act of “piracy”.
Iran has since captured two cargo ships and fired at another.
News
Not a Deal-Breaker: White House Downplays Iranian Action Near the Strait
Just two weeks ago, President Trump threatened to wipe out Iran’s civilization if it did not open the Strait of Hormuz. Days later, he said any Iranian “who fires at us, or at peaceful vessels, will be BLOWN TO HELL!”
Yet on Wednesday, after Iran seized two ships near the Strait of Hormuz, the White House was quick to argue the action was not a deal breaker for potential peace negotiations.
“These were not U.S. ships,” Karoline Leavitt, the White House press secretary, said on Fox News. “These were not Israeli ships.” Therefore, she explained, the Iranians had not violated a cease-fire with the United States that Mr. Trump has extended indefinitely.
She cautioned the news media against “blowing this out of proportion.”
The surprisingly tolerant tone from the White House suggests Mr. Trump is not eager to reignite a war that he started alongside Israel on Feb. 28 — a war that has proved unpopular with Americans and has gone on longer than he initially estimated.
The president on Tuesday extended a cease-fire between the United States and Iran that had been set to expire within hours, saying he wanted to give Tehran a chance to come up with a new proposal to end the war.
The American military has displayed its overwhelming might during the war, successfully striking thousands of targets. But it remains unclear whether Mr. Trump will accomplish the political objectives of the war.
The Iranian regime, even after its top leaders were killed, is still intact. Iran has not agreed to Mr. Trump’s demands to turn over its nuclear capabilities to the United States or significantly curtail them. And the Strait of Hormuz, a key passageway for world commerce that was open before the war, remains closed.
Nevertheless, the White House has repeatedly highlighted the military successes on the battlefield as evidence it is winning the war.
“We have completely confused and obliterated their regime,” Ms. Leavitt said on Fox Wednesday. “They are in a very weak position thanks to the actions taken by President Trump and our great United States armed forces, and so we will continue this important mission on our own.”
The oscillation between threats and a more conciliatory tone has long been one of Mr. Trump’s signature negotiating strategies.
Potential peace talks between the two countries are on hold. Vice President JD Vance had been poised to fly to Islamabad for negotiations. But the trip was postponed until Iran can “come up with a unified proposal,” Mr. Trump said.
The United States recently transmitted a written proposal to the Iranians intended to establish base-line points of agreement that could frame more detailed negotiations. The document covers a broad range of issues, but the core sticking points are the same ones that have bedeviled Western negotiators for more than a decade: the scope of Iran’s uranium enrichment program and the fate of its stockpile of enriched uranium.
Mr. Trump has not spoken publicly about the cease-fire, other than on social media. On Wednesday, he also posted about topics including “my Apprentice Juggernaut” — a reference to his former television show; the Virginia elections, which he called “rigged”; and a new book about Supreme Court Justice Samuel A. Alito Jr.
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