November has seen two big developments in the courts that are of political interest which unfortunately can be characterized as the bad and the ugly.

The bad comes to us from the Eighth Circuit.  Traditionally, the Eighth Circuit has been somewhat on the conservative side, but mostly within the mainstream of traditional conservative thought.  It’s current compositions (by appointing president) is one from Daddy Bush, five from Shrub, one from Obama, and four from Trump.  This past week, a panel of the Eighth Circuit issued an opinion in Arkansas State Conference of the NAACP vs. Arkansas Board of Apportionment.  If you could not tell from the title, this case is a challenge to redistricting in Arkansas under the Voting Rights Act.  The trial judge in the case was a Trump appointee, and, based on a theory currently making its way among the far right, the trial judge dismissed the case on the theory that only the Attorney General can bring a case under Section 2.  In an opinion written by one of the Trump appointees, the panel adopted that theory.  The Trump appointee was joined by a Shrub appointee.  The third judge (a Shrub appointee) dissented.

The basis of the theory of the majority is textualism gone amok.  Technically, there is no express provision in the Voting Rights Act saying that private individuals can challenge district lines.  And, if this were a case of first impression involving just Section 2 and Section 2 had been written today, this argument might make sense.  Currently, courts are very reluctant to infer new causes of action. Continue Reading...