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Opinion: The outlandish ruling that could eviscerate what’s left of the landmark Voting Rights Act

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Opinion: The outlandish ruling that could eviscerate what’s left of the landmark Voting Rights Act

If a decision handed down by a conservative federal appeals court last week is allowed to stand, it will gut what remains of one of the most important federal laws enacted in my lifetime, the Voting Rights Act.

An 8th Circuit Court of Appeals panel held that no one other than the federal government can sue to enforce a key section of this vital statute. And as the dissenting judge pointed out, only 15 of the 182 successful suits under the section over the last 40 years were brought solely by the Department of Justice.

The Voting Rights Act has been remarkably effective in countering the myriad laws and practices the Southern states adopted to keep Black people from voting since the end of Reconstruction. Turnout among Black voters in Mississippi increased from 6% in 1964, the year before the law was enacted, to 59% in 1969.

Section 2 of the Voting Rights Act prohibits state and local election practices and systems from discriminating against voters of color. Congress strengthened the provision in 1982 so that proof of intentional discrimination would no longer be necessary; it’s sufficient to show discriminatory impact.

Even under the conservative Roberts court, Section 2 has provided crucial protection against race discrimination in voting. This year, for example, in Allen vs. Milligan, the court found that Alabama had violated the Voting Rights Act in drawing congressional districts.

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Alabama’s population is 27% Black, but the state’s Legislature had drawn the congressional districts so that only one of six had a Black majority. The court’s ruling that the districts violated Section 2 led to a new map with two majority-Black districts.

Under the 8th Circuit’s 2-1 ruling, however, private individuals and groups such as the ACLU and the NAACP Legal Defense Fund could not sue to enforce Section 2. Hundreds of such suits have been brought, and many have been adjudicated by the Supreme Court — among them Allen vs. Milligan — without being questioned on these grounds.

This latest threat to the Voting Rights Act comes a decade after the Supreme Court overruled another key aspect of the law, Section 5. Under that section, jurisdictions with a history of race discrimination in voting had to secure the U.S. attorney general’s approval before making significant changes to their election systems.

The court declared this “preclearance” requirement unconstitutional in 2013, ruling 5 to 4 that it violated the principle of “equal state sovereignty” to single out Southern states for the restriction. States such as North Carolina and Texas responded by quickly instituting discriminatory election practices that were previously blocked.

The latest case arose in 2021, when the Arkansas NAACP and others challenged new state House districts. The plaintiffs alleged that the Arkansas map diluted Black voting strength in violation of Section 2 and that five additional majority-Black districts should be drawn to fairly represent the state’s Black population.

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The majority opinion by 8th Circuit Court Judge David Stras, a Trump appointee, concludes that only the United States government can bring such suits, contradicting 58 years of practice since the Voting Rights Act became law. Supreme Court Justice Clarence Thomas, whom Stras clerked for, raised this possibility in his Milligan dissent, but the prospect of such a radical change in the law wasn’t taken seriously by many. In fact, none of the parties in the Arkansas litigation even raised the issue: The U.S. District Court where the case was first heard improperly raised the issue on its own.

At best, the Justice Department has the resources to bring only a handful of Section 2 lawsuits a year. At worst, especially under a conservative administration, it may bring none.

In his dissent from the appeals court’s decision, Chief Judge Lavenski Smith rightly described the ruling as threatening major upheaval. “Rights so foundational to self-government and citizenship,” he wrote, “should not depend solely on the discretion or availability of the government’s agents for protection.”

As Smith noted, the Supreme Court declared more than two centuries ago, in Marbury vs. Madison, that where there is a violation of a right, there must be a remedy. If the Supreme Court doesn’t reverse the 8th Circuit’s decision, it will leave little remedy for violations of one of our most important rights.

Erwin Chemerinsky is a contributing writer to Opinion and the dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.”

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Park Police union says officers ‘did everything they could’ during DC anti-Israel riot

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Park Police union says officers ‘did everything they could’ during DC anti-Israel riot

Following the protests at Union Station by anti-Israel agitators defacing federal property in protest of Israeli Prime Minister Benjamin Netanyahu’s address to Congress, a Park Police union is pushing back against criticism that only a few arrests were made.

Thousands of Hamas-sympathizing agitators descended on Washington, D.C., Tuesday, at one point defacing federal monuments with phrases in support of the terrorist group responsible for the Oct. 7 attacks in Israel, saying, “Hamas is coming.” 

Twenty-three people were arrested at the protests, but some have suggested that number should have been higher. 

Sen. Marco Rubio, R-Fla., posted on X, “How many more times are they going to allow leftist degenerates who support terrorism and hate America to vandalize property and attack police? There should have been hundreds of arrests today in D.C. not just 23.”

HOUSE REPUBLICANS REPLACE AMERICAN FLAGS AT UNION STATION AFTER ANTI-ISRAEL PROTESTS

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The Columbus Memorial Fountain at Union Station during an anti-Israel protest on the day Israeli Prime Minister Benjamin Netanyahu addressed a joint meeting of Congress on Capitol Hill in Washington July 24, 2024.  (Reuters/Seth Herald)

But the U.S. Park Police Labor Committee is pushing back.

“Our officers on the ground did everything they could to protect life and property. In fact, despite having only 29 officers available to mitigate damage — 29! — with no additional help from the Department of the Interior, we processed several arrests for charges ranging from assault on a police officer to destruction of government property,” Kenneth Spencer, chairman of the United States Park Police Fraternal Order of Police, said in a statement. 

“That’s why it’s so disheartening to hear some members of Congress and members of the media, many of whom describe themselves as ‘champions’ of law enforcement, suggesting that officers gave protesters a ‘pass’ or that insufficient arrests were made. 

“Nothing could be further from the truth. Anyone who truly cares to understand the problem would see that our officer staffing crisis is at the root of our agency’s mission readiness. A small unit of 29 officers arrested 10 individuals while being assaulted by a mob of thousands. We simply did not have the staffing or resources to accomplish a mass arrest operation.”

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SEE IT: THE MOST DRAMATIC PHOTOS FROM WEDNESDAY’S PRO-HAMAS WASHINGTON, D.C. PROTESTS

A pro-Palestinian demonstrator sprays graffiti on Christopher Columbus Memorial Fountain at Union Station

An anti-Israel demonstrator sprays graffiti on the Christopher Columbus Memorial Fountain at Union Station on the day of Israeli Prime Minister Benjamin Netanyahu’s address to a joint meeting of Congress on Capitol Hill in Washington July 24, 2024.  (Reuters/Nathan Howard)

At least one demonstrator, whose face was covered, was spotted by Fox News carrying what appeared to be the flag of the terrorist group Hamas while others were heard shouting “Allahu Akbar.”

KAMALA HARRIS REACTS TO ANTI-ISRAEL RIOTS AT DC’S UNION STATION

Protesters-gather-for-Israeli-PM-Netanyahu's-address-to-Congress-in-Washington

Anti-Israel demonstrators burn an effigy depicting Israeli Prime Minister Benjamin Netanyahu outside Union Station on the day of Netanyahu’s address to a joint meeting of Congress on Capitol Hill in Washington July 24, 2024.  (Reuters/Nathan Howard)

The White House condemned the protests Wednesday evening, calling the chaos “disgraceful.” 

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“Identifying with evil terrorist organizations like Hamas, burning the American flag or forcibly removing the American flag and replacing it with another is disgraceful,” White House spokesperson Andrew Bates said in a comment to Fox News Digital Wednesday evening. 

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Ali: Kamala Harris has a campaign soundtrack: Beyoncé's 'Freedom'

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Ali: Kamala Harris has a campaign soundtrack: Beyoncé's 'Freedom'

Vice President Kamala Harris’ bid for the presidency has a soundtrack: Beyoncé’s “Freedom.”

The leading Democratic presidential candidate took the stage in her first visit to her Wilmington, Del. campaign headquarters and again during her first campaign rally in Wisconsin as the song played.

Now the cathartic anthem graces Harris’ first campaign ad, in which she says: “There are some people who think that we should be a country of chaos, of fear, of hate. But us? We choose something different: We choose freedom.”

Pit that against the musical number her competitor chose for his grand entrance on Night 3 of the Republican National Conference. Donald Trump walked out to James Brown’s “It’s a Man’s, Man’s, Man’s World,” a tone-deaf choice for a former president found liable for sexual abuse, who’s bragged about sexually assaulting women, a married man who paid hush money to a porn star and a former president who rolled back women’s reproductive rights 50 years with the repeal of Roe vs. Wade.

Maybe the Godfather of Soul would have endorsed Trump’s usage of his song, but Brown would be breaking with decades’ worth of musicians who’ve decried GOP candidates playing their tracks at rallies and booster events. Adele, Rihanna, R.E.M., the Rolling Stones, Prince, Neil Young, Guns N’ Roses and Queen are among the many artists who’ve spoken out against Trump using their tunes for campaign purposes.

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Heart bristled when the McCain-Palin campaign used “Barracuda.” Tom Petty insisted George W. Bush back away from “I Won’t Back Down.” Bruce Springsteen decried Ronald Reagan’s appropriation of “Born in the U.S.A.”

Beyoncé, however, gave Harris her blessing to use “Freedom,” a single from her 2016 blockbuster album “Lemonade.” The song, which features guest rapper Kendrick Lamar, is an explosive expression of empowerment. At the time of its release, it spoke to public outcry around police killings of unarmed Black men and women — Eric Garner, Tamar Rice, Freddie Gray — and protests that were largely fueled by the ire of younger generations.

Whether Beyoncé was singing about the tyranny of a cheating spouse or racial injustice (or both), the song became an anthem for a new, potentially potent block of the American electorate.

For the first time, Gen Z and millennials could now account for as many votes as baby boomers and their elders, groups that have made up a majority of the electorate for decades.

Folks under 40 have grown up with Beyoncé and her ubiquitous work. Think of Beyoncé like the Who for boomers — their work is everywhere (Republican Sen. Rand Paul played the band’s anti-war hit “Baba O’Riley” when he campaigned in 2015) — or Nirvana for Gen X, except no one cares what we think. Whatever, nevermind.

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The Harris campaign’s smart choice of music coincides with a willingness to lean into a meme culture that shot up organically around the 59-year-old VP since President Biden announced Sunday that he was dropping out of the race.

Pop star Charli XCX showed her support for Harris when she tweeted “Kamala IS brat.” The British singer is referring to the TikTok and Twitter edits of Harris’ image superimposed to songs from Charli XCX’s hit album “Brat.” The avalanche of memes come from a video clip in which Harris talks about her mother’s response to the hubris of youth: “You think you just fell out of a coconut tree? You exist in the context of all in which you live and what came before you.”

Right-wing social media used the quote to deride Harris as inarticulate and a “word salad” master, but liberal swaths of Gen Z have since reworked the clip into emojis and memes that celebrate Harris’ nonconformist approach. She’s become a viral sensation, in a good way, unlike J.D. Vance’s damning “single cat lady” memes and a cringey internet joke about encounters with couches.

It’s rare that relevant talent will shill for a Republican candidate. Case in point: Trump’s pop culture ambassadors at this year’s RNC were Kid Rock, Kanye’s ex Amber Rose and former WWE wrestler Hulk Hogan, whose big moment was ripping his shirt off and screaming “Let Trump mania run wild!”

Harris chose to let freedom ring, and she has Queen Bey behind her.

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Texas sues Biden administration over program giving birth control to teens without parents' knowledge

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Texas sues Biden administration over program giving birth control to teens without parents' knowledge

Texas officials are challenging a recent order from President Biden’s administration that would allow schools to distribute birth control to teenagers without parental consent.

Texas Attorney General Ken Paxton announced Thursday that his office is suing the Biden administration over their 2021 change to Title X guidelines banning parental consent requirements for birth control services.

“By attempting to force Texas healthcare providers to offer contraceptives to children without parental consent, the Biden Administration continues to prove they will do anything to implement their extremist agenda — even undermine the Constitution and violate the law,” Paxton said in a statement.

TRUMP SAYS HE ‘WILL NEVER ADVOCATE IMPOSING RESTRICTIONS ON BIRTH CONTROL’ OR OTHER CONTRACEPTIVES

A woman takes the next pill from a monthly pack of contraceptive pills.  (Annette Riedl/picture alliance via Getty Images)

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The Texas legal battle began in Dec. 2021 when US District Judge Matthew Kacsmaryk ruled that Title X — the federal program that provides free, confidential contraception to anyone regardless of age, income or immigration status —  violates parental rights and violates state and federal laws.

The case was argued by former solicitor general of Texas Jonathan Mitchell, representing father Alex Deanda, who said he was “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.”

SCHUMER PLANS VOTE ON ‘CONSTITUTIONAL RIGHT TO CONTRACEPTION’ IN BID TO PROTECT SENATE DEMOCRAT MAJORITY

Matthew Kacsmaryk

Kacsmaryk, a Trump appointee, previously ruled that parents must be informed when birth control is provided to their children under 18 years old. (Senate Judiciary Committee via AP)

In response, the federal government updated guidelines to state that Title X projects “may not require consent of parents or guardians for the provision of services to minors, nor can any Title X project staff notify a parent or guardian before or after a minor has requested and/or received Title X family planning services.”

Paxton is now seeking a permanent injunction on this rule, which he claims defies the findings of the federal court.

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Texas Attorney General Ken Paxton and his wife Angela are pictured outside the Supreme Court on Nov. 1, 2021.

Paxton and his wife Angela are pictured outside the Supreme Court. (Bill Clark/CQ-Roll Call, Inc via Getty Images)

Paxton filed the lawsuit in a federal court in Amarillo. It will likely be heard by Kacsmaryk, the same judge who previously ruled parents must be informed of birth control provided to their children.

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