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The American Civil Liberties Union, the ACLU of Arkansas, the Law Office of Bryan L. Sells LLC, and Dechert LLP filed a lawsuit challenging Arkansas’s state House map for violating Section 2 of the Voting Rights Act of 1965 (VRA) by undermining the voting strength of Black Arkansans. The lawsuit was filed on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel, who represent thousands of Black voters whose political power is severely and unlawfully diminished by the current state House map.

According to the lawsuit, the redistricting plan put forth by the 2021 Arkansas Board of Apportionment has the effect of diluting the voting strength of Black voters in Central Arkansas, the Upper Delta, the Lower Delta, and Southwest Arkansas. The Board of Apportionment should have drawn at least four additional Black-majority districts to reflect Arkansas’s growing Black population.

In 2022, a 5-day hearing which featured extensive fact and expert witness testimony was held. Despite acknowledging that the voting rights groups had demonstrated that they had a strong case that the map violated the Voting Rights Act, a district court ruled against the groups in a radical decision that concluded impacted voters could not sue under Section 2–only the Attorney General of the United States could. The unprecedented decision was appealed, but in a split decision with the chief judge dissenting, a three-judge panel of the Eighth Circuit Court of Appeals affirmed the district court’s ruling.

For generations, private individuals have brought cases under Section 2 of the Voting Rights Act to protect their right to vote. More than 400 Section 2 cases have been litigated in federal court, with the vast majority brought by private plaintiffs, including at least 12 in the U.S. Supreme Court, including the 2022 landmark Allen v. Milligan case. No court has ever denied private actors’ ability to bring their claims in federal court — with the sole exception of the courts in this case, threatening what remains of the VRA.

On December 11th, we filed a petition for a rehearing for the court to rectify its decision and reaffirm the private right to enforce Section 2 of the VRA. On January 30, the Eighth Circuit denied our petition for an en banc rehearing.