Ark. State Conference NAACP v. Ark. Bd. of Apportionment

Decision Date17 February 2022
Docket NumberCase No.: 4:21-cv-01239-LPR
Parties ARKANSAS STATE CONFERENCE NAACP et al., Plaintiffs v. The ARKANSAS BOARD OF APPORTIONMENT et al., Defendants
CourtU.S. District Court — Eastern District of Arkansas

586 F.Supp.3d 893

ARKANSAS STATE CONFERENCE NAACP et al., Plaintiffs
v.
The ARKANSAS BOARD OF APPORTIONMENT et al., Defendants

Case No.: 4:21-cv-01239-LPR

United States District Court, E.D. Arkansas, Central Division.

Signed February 17, 2022


586 F.Supp.3d 895

Angela Liu, Pro Hac Vice, Dechert LLP, Chicago, IL, Bryan L. Sells, The Law Office of Bryan L. Sells, LLC, Atlanta, GA, Ceridwen Cherry, Pro Hac Vice, American Civil Liberties Union, Voting Rights Project, Washington, DC, Gary L. Sullivan, ACLU of Arkansas, Legal Division, Little Rock, AR, Jonathan Topaz, Pro Hac Vice, Sophia Lin Lakin, Pro Hac Vice, American Civil Liberties Union, Neil Steiner, Pro Hac Vice, Dechert LLP, New York, NY, Luke M. Reilly, Pro Hac Vice, Dechert LLP, Philadelphia, PA, Matthew F. Williams, Pro Hac Vice, Dechert LLP, San Francisco, CA, for Plaintiffs.

Asher Steinberg, Nicholas J. Bronni, Dylan L. Jacobs, Jennifer L. Merritt, Arkansas Attorney General's Office, Little Rock, AR, Michael Allen Mosley, Jason Owens Law Firm, PA, Conway, AR, for Defendants.

ORDER

LEE P. RUDOFSKY, UNITED STATES DISTRICT JUDGE

This is a § 2 Voting Rights Act case. The Plaintiffs are the Arkansas State Conference NAACP ("the Arkansas NAACP") and the Arkansas Public Policy Panel ("the Panel").1 The Defendants are the Arkansas Board of Apportionment ("the Board"), the Board's three members, and the State of Arkansas.2 The Board's three members—who are sued in their official capacities only—are Governor Asa Hutchinson, Attorney General Leslie Rutledge, and Secretary

586 F.Supp.3d 896

of State John Thurston.3 The sole claim alleged in the Complaint is that the 2021 reapportionment plan for the Arkansas House of Representatives ("the Board Plan"), which was approved by the Board, "dilutes Black voting strength in violation of Section 2 of the Voting Rights Act ...."4

Section 2(a) of the Voting Rights Act provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color ...."5 Section 2(b) further clarifies this prohibition as follows:

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.6

The Supreme Court has long held that the scope of § 2's prohibition encompasses the alleged dilution of Black votes.7

This is not a case alleging intentional or purposeful discrimination by the Board or its members. As Plaintiffs themselves emphasize, "[i]n 1982, ‘Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the "results test" ....’ "8 Plaintiffs have repeatedly made clear in their filings and in their oral presentations that their case is primarily focused on the results of the Board Plan.9 The nub of their argument is as follows:

The challenged plan contains just eleven majority-Black House districts even though more than sixteen percent of the state's population is Black[,] and it would be possible to draw sixteen (out of 100) geographically compact, majority-Black House districts. As a result, the challenged plan impermissibly dilutes Black voting strength in violation of Section 2.10

Pending before the Court is Plaintiffs’ Motion for a Preliminary Injunction.11 From what the Court has seen thus far,

586 F.Supp.3d 897

there is a strong merits case that at least some of the challenged districts in the Board Plan are unlawful under § 2 of the Voting Rights Act.12 For the reasons discussed below, however, the Court cannot reach the merits. After a thorough analysis of the text and structure of the Voting Rights Act, and a painstaking journey through relevant caselaw, the Court has concluded that this case may be brought only by the Attorney General of the United States. Before dismissing this case, however, the Court will give the United States five calendar days from the date of this Order to join the case as a plaintiff. If the United States chooses to become a plaintiff in this case, it is the Court's intention to move expeditiously to a final merits determination.

I. BACKGROUND AND PROCEDURAL HISTORY

The Arkansas Constitution requires that districts for the Arkansas House of Representatives be redrawn every ten years upon completion of the census.13 The census is performed by the federal government, which shares the data (once it is compiled) with Arkansas. The Board uses this census data to draw new district lines for the Arkansas House of Representatives and the Arkansas Senate.14 Because there was a significant delay in collection and compilation of the census data by the federal government, there was a concomitant significant delay in providing the necessary data to Arkansas (and other states).15 Accordingly, the Board Plan was not released to the public until October 29, 2021.16 On November 29, 2021, after a one-month comment period, the Board adopted the Board Plan.17 The Board Plan took legal effect on December 29, 2021.18 That same day, the Arkansas NAACP and the Panel filed this lawsuit and the pending Motion for a Preliminary Injunction.19

As it was originally filed, Plaintiffs’ Motion for a Preliminary Injunction sought

586 F.Supp.3d 898

"preliminary injunctive relief prohibiting the State from implementing the dilutive plan for the 2022 election cycle and from failing to implement a plan that complies with Section 2."20 Essentially, Plaintiffs requested that the Court require the creation of a new districting plan for the 2022 election. Plaintiffs also requested expedited consideration of the Motion, explaining that they needed to obtain the requested preliminary relief before March 1, 2022.21

On December 30, 2021, one day after the Plaintiffs’ Complaint and Motion were filed, the Court set a schedule that wrapped up motion briefing by Thursday, January 20, 2022, and called for a motion hearing to begin on Monday, January 24, 2022.22 Subsequently, Defendants asked for an extension of both the briefing schedule and the hearing date.23 The Court granted this request in part and denied it in part, providing a smaller extension than Defendants sought. The Court reshuffled the schedule so that briefing would wrap up on Wednesday, January 26, 2022, and the hearing would begin on Thursday, January 27, 2022. The Court explained that "[t]here [was] good cause for a very limited extension ... considering how fact intensive this case is and the size and scope

586 F.Supp.3d 899

of Plaintiffs’ filings," but that "Plaintiffs [were] ... correct about the importance of getting to a decision without delay."24 The Court attempted to balance these two competing interests.

Briefing proceeded on schedule. However, sometime during the weekend of January 23, 2022, and despite being vaccinated and boosted, court personnel (me) contracted COVID-19.25 This necessitated moving the preliminary injunction hearing to Tuesday, February 1, 2022.26 The preliminary injunction hearing consisted of four lengthy days of testimony—interrupted by a two-day winter storm that closed the courthouse—and one lengthy day of closing arguments and legal presentations. The hearing ended on Tuesday, February 8, 2022.

A fairly seismic development occurred as the preliminary injunction hearing was coming to a conclusion. Recall that Plaintiffs were originally asking, as a matter of preliminary relief, that the Court require the creation of a new districting plan for the upcoming 2022 election. In opposition to this request, Defendants argued that such relief would be impossible to implement without causing potentially catastrophic confusion and administrative errors given the current election schedule.27 Plaintiffs disagreed with this apocalyptic prognostication, suggesting that there was plenty of time before the election, and that the Court could extend or move any problematic election-related deadlines.28 Plaintiffs’ argument on this point relied heavily on a recent decision from a federal court in Alabama granting preliminary relief similar to the relief Plaintiffs wanted in our case.29 But their reliance on this decision turned out to be premature.

On the penultimate day of the preliminary injunction hearing in our case, the

586 F.Supp.3d 900

Supreme Court stayed the preliminary injunction that had been granted by the federal district court in Alabama. In a statement concurring in the grant of the stay, Justice Kavanaugh (joined by Justice Alito) explained that the Alabama district court's order violated the Purcell principle that "federal courts ordinarily should not enjoin a state's election laws in the period close to an election."30 Essentially, the concurrence explained that the merits of the Alabama case were "not clearcut in favor of the plaintiffs" and that the plaintiffs had not established that the election-related changes ordered by the district court were "feasible without significant cost, confusion, or hardship."31

In response to this development, Plaintiffs in our case took two tacks. Plaintiffs first argued that there was some legally significant daylight between the situation in Alabama and the one here in Arkansas. Specifically, Plaintiffs suggested that they had a more clearcut case than the one in Alabama, and that the election schedule in Arkansas would make judicially imposed changes easier to accomplish and less burdensome on state and county election officials.32 Without getting into the weeds too much, it suffices to say that this argument is an incredibly...

To continue reading

Request your trial
3 cases
  • Alpha Phi Alpha Fraternity Inc. v. Raffensperger
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • February 28, 2022
    ...is aware of the recent decision in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, Case No. 4:21-cv-01239-LPR, 586 F.Supp.3d 893,895–96 (E.D. Ark. Feb. 17, 2022) (APA Doc. No. [119]), in which the district court concluded there is no implied private right of action under......
  • Coca v. City of Dodge City
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • April 18, 2023
    ......For the reasons. state below, the Court grants Defendants' Motion as to. ... Arkansas State Conf. NAACP v. Arkansas Board of. Apportionment , [ 11 ... [ 11 ] 586 F.Supp.3d 893 (E.D. Ark. 2022). . . [ 12 ] ......
  • Schroeder v. City of Muskego
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • February 18, 2022
    ...City's intention to deem it civil. Therefore, the amended complaint sufficiently alleges that Section 294-3(D) is both retroactive as 586 F.Supp.3d 893 applied to Schroeder and penal. Schroder has stated a plausible claim that Section 294-3(D) is an unconstitutional ex post facto law; it wo......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT